If you are an urban dweller in the UK, according to research carried out for The Times, you should expect to be photographed as many as 300 times a day. Combine that with the numerous profiles maintained by advertisers and others based on your internet browsing behaviour and goodness knows what information held by the NSA and it is reasonable to assume that what limited rights to privacy used to be enjoyed have eroded almost out of existence.
However, the right to private life is enshrined in the European Convention on Human Rights (ECHR) and applies equally to employment law claims as it does in other areas of law. The case of City And County Of Swansea v Gayle led to consideration of how the right to private life sits alongside the right of an employer to supervise its employees. Swansea Council employed an enquiry agent to keep tabs on an employee they suspected of playing squash during his working hours, and dismissed him when presented with evidence that he was to be seen at his local leisure centre instead of at work on Thursday afternoons. He made a number of claims, most of which failed because of his downright dishonesty. However, the Employment Tribunal found that he had been unfairly dismissed, on the basis that his right to privacy had been infringed, but without awarding any actual compensation.
The Employment Tribunal took the view that the employer had taken its investigations too far so that, once unauthorised absence was established, covert surveillance was disproportionate and unjustified. There had been a breach of Article 8 ECHR and the employer had not paid sufficient attention to its obligations under the Data Protection Act.
On appeal to the Employment Appeal Tribunal EAT President Langstaff disagreed with the Employment Tribunal on just about every point made concerning the finding of unfair dismissal:
- Article 8 of the ECHR was not engaged – the video surveillance took place in a public place, outside the sports centre.
- It took place during working hours, and an employer is entitled to know where someone is and what they are doing during the employer’s time.
- The employee was a fraudster “busily engaged on his own business whilst receiving his employer’s money for his employer’s business” – a person getting up to no good has no reasonable expectation of privacy.
As for the Employment Tribunal’s disapproval of the methods used by the Employer, Langstaff P had this to say:
However reprehensible an employer’s behaviour may be in moral or social terms, it is only the extent to which that impacts on the fairness of the dismissal which is relevant to the Tribunal’s decision…What is reasonable or unreasonable must have that focus. The decision which is to be held reasonable or unreasonable is that of dismissal. Accordingly, it is only if the faults in the investigation are relevant to the dismissal that it is likely to be held unreasonable. As Mr Cohen (for the Council) put it, to hold as the Tribunal did here that the behaviour of the employer was disproportionate because it did not need to rely upon the surveillance in addition to the oral evidence it already had says nothing nor could it say anything about the reasonableness of forming a view upon the material available that the employee was guilty. Further, it is never likely, if ever it could be, that an investigation will be held unreasonable because it is too thorough – at least without the nature of the investigation having in some other way made the dismissal of the employee unfair. If what was unfair here about what the employer did was taking videos of him 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 unfair since it would not be relevant to the dismissal itself, even although in this separate respect the employer might not have behaved entirely to the Tribunal’s liking.
The Employment Tribunal had also attached too much weight to alleged breaches of the Employment Practices Data Protection Code. In fact, the Code has no statutory footing and provided no more than guidance. Further, on the facts, the guidance might not even be relevant.
It followed that the finding of unfair dismissal could not stand and it was substituted with a declaration that Mr Gayle was not unfairly dismissed>
