Employers will on occasions have suspicions about the activities of their employees which are difficult to prove. On rare occasions, the employer may turn to covert monitoring to confirm their suspicions.
Courts and tribunals then have to weight up the employee’s reasonable expectations of privacy versus an employer’s right to know what their employees are up to at work.
In the case of City and County of Swansea v Gayle, Mr Gayle was dismissed after his employer filmed him on five separate occasions going into a sports centre to play squash while he was supposed to be at work.
At first instance, the employment tribunal found that, while it accepted that Mr Gayle had been defrauding his employer by pretending to be at work while playing squash, the dismissal was unfair due to the covert monitoring undertaken. The tribunal also found that there was sufficient evidence already in front of the employer to allow them to dismiss the employee without undertaking covert monitoring i.e. the employer had gone too far in its investigations.
Although the tribunal found that no compensation was due to the employee, the employer in this case appealed the decision. The EAT (perhaps unsurprisingly) overturned the decision of the tribunal and found that the dismissal was fair. In particular, the EAT held that, in general, fraudsters could have no reasonable expectation that they could keep their fraudulent activities private from their employers. As regards the investigation, the EAT cast doubt on a proposition that an investigation could be held to be unfair due to being unnecessarily thorough.
The case doesn’t, of course, give employers a right to monitor employees’ behaviour in or outside work, particularly covert monitoring. In any case, the monitoring must be proportionate and as unobtrusive as possible and employers would be well advised to take advice before embarking on such a course.