Employee conducting workplace surveillance

The EAT has considered whether an employer was entitled to dismiss an employee for conducting his own surveillance in the workplace.

Northbay Pelagic Ltd v Anderson UKEATS/0029/18

Facts

The employee, who was also a director of the company, was dismissed for misconduct following an investigation. One of the grounds of misconduct was that the employee had set up a camera in his office in order to monitor whether anyone accessed his computer. He had earlier become suspicious that someone had entered his office and accessed the computer in his absence.

A tribunal upheld the employee’s claim for unfair dismissal, finding that there had been flaws in the investigation and that the outcome of the disciplinary process was pre-determined. The company appealed.

EAT decision

The EAT dismissed the company’s appeal on all but one of the grounds, which was remitted to be heard by a different tribunal. It upheld the tribunal’s finding that the employee had been unfairly dismissed on the basis that he had secretly undertaken surveillance in the workplace.

The EAT agreed with the tribunal’s conclusion that the claimant’s placing of the camera did not amount to misconduct that merited dismissal. The background to the surveillance was a fractured relationship and a lack of trust between the employee and the company. The company should have conducted a balancing exercise between the right to privacy and the claimant’s wish to protect his confidential information. The company had failed to take into account that the camera was set up in an office set aside for the claimant’s use, for which he believed he had the only key. It was not in an area accessed by the public, and there was no evidence that anyone had in fact been captured on the camera. It was also relevant that the claimant was not only an employee, but also a director of the business.

Consequences

As the EAT has pointed out in its decision, it is unusual for a case to involve covert surveillance carried out by an employee, rather than the employer.  It is important to recognise that the ‘balancing exercise’ that should be adopted when considering whether covert surveillance can be justified will apply in both situations. Employers might want to consider including covert surveillance or recordings as examples of potential misconduct in their disciplinary policies.

These articles are from the February 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.