City and County of Swansea -v- Mr D A Gayle

This case involved an appeal in the Employment Appeals Tribunal (“EAT”) against a finding of unfair dismissal.

The employee was dismissed because he had been seen regularly at a sports centre when he claimed to be at work. As part of the employer’s investigation and to verify this behaviour, the employer engaged a private investigator who secretly filmed the employee outside the sports centre at times when he claimed to have been in work.

An Employment Tribunal found in favour of the employee on his unfair dismissal claim, essentially because of the Tribunal’s distaste for the employer’s use of covert surveillance. It held the investigation was more thorough than it needed to have been, and that the surveillance was a breach of the employee’s Article 8 right to privacy.

The EAT overturned the Employment Tribunal’s decision. The EAT held that, if what was unfair was taking the videos of the employee in public, and it had nothing to do with the dismissal because the dismissal was already sufficiently evidenced, then that would be no basis for holding the dismissal to be unfair. The EAT also stated it is highly unlikely that an investigation will be held unreasonable because it is too thorough – at least without the nature of the investigation having in some way made the dismissal of the employee unfair.

The EAT also importantly held that those committing fraud can have no reasonable expectation that their conduct is entitled to privacy. When an employee is on his employer’s time, he had no reasonable expectation that he could keep private from his employer where he was or what he was doing.

On the facts of this case, therefore, an employer does not breach an employee’s Article 8 rights by using evidence from covert surveillance to dismiss him. However, employers should be mindful when deciding to engage a private investigator to investigate an employee’s actions, as to do so is fraught with risks in respect of overstepping the mark between the employer’s right to know where and what the employee is doing and the employee’s right to privacy.

This ruling does not give employers carte blanche to film employees secretly. It is only advisable to initiate such investigations if the conduct cannot be sufficiently evidenced by any other means.