By Safia Tharoo, Barrister, 42 Bedford Row, London
The Employment Appeal Tribunal recently heard the case of Mr Gayle v City and County of Swansea (the Council) UKEAT/0501/12. Mr Gayle was employed by the Council. On a particular Thursday in 2010 he was seen by a senior employee of the Council playing squash at a local sports centre before 5pm. The senior employee believed that Mr Gayle was supposed to be at work, and upon checking, found that Mr Gayle had clocked off at 5.43pm. On a Thursday a few weeks later, Mr Gayle was seen playing squash again before 5pm; at 5.10pm he had sent a message to his employer saying he was still at work and was finishing soon. Based on these sightings, the Council arranged for covert surveillance by a private investigator which showed Mr Gayle at the sports centre when he had not as yet clocked off from work. He was therefore playing sport at a time when his employer was paying him to work.
As a result of this information the Council held a disciplinary meeting in which they dismissed Mr Gayle. He brought a claim in the employment tribunal for unfair dismissal. He claimed that his employer should not have covertly recorded him and that this was a breach of his right under Article 8 of the European Convention on Human Rights, which states:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention/disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”
The Employment Tribunal were critical of the Council’s use of covert surveillance. In order to justify the dismissal, the Council had to demonstrate that they had a genuine and reasonable belief in the guilt of Mr Gayle, and that such belief was based on a reasonable investigation. The Tribunal felt that the Council had sufficient information to justify their belief based on the two sightings of Mr Gayle by fellow employees, and therefore there was no need for any further investigation via covert surveillance. In these circumstances, they held that the use of such surveillance did breach Mr Gayle’s rights under Article 8 and rendered his dismissal unfair. However, accepting that Mr Gayle’s conduct had caused his dismissal, they awarded him nil compensation.
The Council appealed against the finding of unfair dismissal to the Employment Appeal Tribunal. They argued that essentially they had been penalised for being too thorough. They argued, and the EAT accepted, that the Tribunal had wrongly concluded that Article 8 was engaged in this case. First, they asserted that the footage had been taken in a public place, outside the sports centre. Whilst the EAT accepted that there may be circumstances where footage taken in a public place might still constitute a breach of Article 8, in general terms it would not as the individual would not have the reasonable expectation of privacy in those circumstances. Secondly, they argued that at the time the footage was taken, Mr Gayle was on his employer’s time. One aspect of an employment relationship is that an employee is subject to the reasonable direction of his employer and thus an employer is entitled to know where its employees are and what they are doing whilst on ‘work time’. An employee can have no reasonable expectation that he can keep those matters private and secret from his employer; to do so would be to run contrary to the contract he had entered with his employer. Finally, the Council argued that someone engaged in fraud could have no reasonable expectation that his conduct is entitled to privacy.
Based on these findings the Employment Appeal Tribunal held that there had been no breach of Article 8(1) so as to require the Tribunal to consider Article 8(2) at all. Therefore, the decision of the Tribunal was overturned and the Employment Appeal Tribunal found that the dismissal was in fact fair.
There may be certain circumstances where employers have suspicions about the actions of their employees and want to consider some form of covert investigation; this case makes clear that the use of such methods are lawful, but careful consideration does need to be given to ensuring that such surveillance is reasonable, and does not breach Article 8, for example by being taken in a private place.