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Can companies covertly video employees and use the evidence to dismiss them?

July 10, 2013 10:15 am Published by Leave your thoughts

In this case of City & County of Swansea v Gayle, the employment judge found in favour of the employer, finding the employee was not unfairly dismissed, and discharging the ex-employee’s claim of a breach of his Human Rights under Article 8( The right to respect for private and family life, home and correspondence).

The background to this makes interesting reading – and perhaps worrying reading too. In this case, the employee was playing squash in work time while sending messages claiming to be working, and managed to clock off from work only a short time after being spotted at the sports centre by a senior employee.

In terms of the breach of Human Rights claim that surrounds the covert recording the EAT determined that “…. individuals will not in those places have the reasonable expectation of privacy…”. The EAT judgement also reads “… at a time when the Claimant was “on the clock”; it was in his employer’s time. It is a feature of an employment contract that an employee is subject to the reasonable direction of his employer. An employer is thus entitled to know where someone is and what they are doing in the employer’s time. An employee can have no reasonable expectation that he can keep those matters private and secret from his employer at such a time. To do so would be to run contrary to the contract he had entered with his employer.”

Before employers up and down the land put private investigators on speed dial (we know a few – we can refer) there is the usual note of caution that the reasonableness of any investigation to achieve a legitimate aim, will always stand or fall on the merits of the facts of the individual case. Remember that not only is there the question of reasonableness of covert surveillance, but prior to that that is the question of whether or not in the specific case circumstances, covert surveillance is a reasonable investigative method.

We have had years of investigation experience, and have been involved in cases where private investigators’ surveillance material has been used to support dismissal. Give us a call to discuss any questions you have around this – we’re in the office on 0845 463 3231.

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