Covert surveillance in the workplace - grounds for dismissal?

The Employment Appeal Tribunal (EAT) held that it was unfair to dismiss an employee who had installed a covert camera in his office to monitor his employer.

The Issue

In this Employment Appeal Tribunal (EAT) case, the Tribunal had to determine whether it was reasonable for an employer to dismiss an employee for gross misconduct for covertly installing a camera in his office to monitor his employer whilst he was suspended from duty.

The Facts

Mr Anderson was a Director, Shareholder and an employee of Northbay Pelagic Ltd.  His relationship with his employer broke down and he was suspended from work in March 2016. While he was suspended, he set up a camera in his office without his employer’s consent to monitor anyone who entered his room to access his computer. His employer believed that the covert surveillance was unlawful, and added this act to other misconduct allegations for which Mr Anderson was already under investigation. Mr Anderson was dismissed on 30 June 2016 for a number of acts of gross misconduct which included installing the covert camera in his office.  Mr Anderson claimed he had been unfairly dismissed.

The Tribunal were not satisfied the decision to dismiss fell within the band of reasonable responses and held that Mr Anderson had been unfairly dismissed.  The employer appealed to the EAT.

The EAT found that as Mr Anderson was not just an employee but a Director and Shareholder that his actions could be perceived to protect the business and personal interests that arose as a result of his work positions. The employer should have conducted a balancing exercise between the right to privacy and Mr Anderson’s wish to protect his confidential information.

The employer had failed to take into account that the camera was set up in an office set aside for Mr Anderson’s use and was not an area accessed by the public.  As there was no evidence anyone had actually been caught on the camera and the risk of doing so was negligible the tribunal had been right to reject this as a legitimate ground for dismissal.

Points to take away from the case

This case highlights how important it is for an employer to carry out the necessary balancing exercise before reaching early conclusions on what acts may amount to gross misconduct.

It should be noted that this case does not give unequivocal permission for employees to set up covert surveillance at work and that anyone doing so will generally be guilty of misconduct.  Employers may also want to consider expressly stating in a disciplinary policy that covert surveillance/recording is an example of gross misconduct.