Rogers & Norton News

Surveillance not a breach of human rights

Friday, August 16, 2013

County and Borough of Swansea v Gayle

The Employment Appeal Tribunal (EAT) was asked to decide if covert surveillance that captured an employee’s misconduct was a breach of privacy, and if he had been unfairly dismissed.

Mr Gayle worked for Swansea Council. He was suspected of playing squash when he should have been at work, and so the Council used a private investigator to film him. The recording was used in evidence against Mr Gayle and he was dismissed.

He brought an unfair dismissal claim, also arguing that the Council had breached Article 8 of the European Convention on Human Rights – the right to respect for private and family life. The EAT found against him. The dismissal was fair. Employers are entitled to know where their employees are and what they are doing while they are being paid. There had been no breach of Article 8 either; Mr Gayle had been filmed in a public place and therefore should not have expected privacy.

As tempting as it may be to leap into action that will catch employees red-handed, don’t. Carefully weigh up the pros and cons of commissioning and using this sort of surveillance. In Mr Gayle’s case where the misconduct amounted to a type of fraud, it was found to have been justified – but it won’t always be.