Fri 19 Feb 2021

Can employees covertly film their employer?

Recent EAT decision finds dismissal of employee who did so was unfair

When you think about covert surveillance in the workplace what generally comes to mind is employers installing cameras to monitor the activities of their employees.  Such circumstances have led to cases being heard in employment tribunals, courts and the European Court of Human Rights.  Often these cases stem from employers deciding to use covertly obtained images in disciplinary proceedings, then find a subsequent dismissal being challenged not only as unfair but also in breach of Article 8 of the European Convention on Human Rights - namely the right to private and family life. 

In the case of Northbay Pelagic Limited v Colin Anderson the shoe was very much on the other foot.  Rather than being monitored by his employer, it was Mr Anderson who undertook the covert surveillance.  The relationship between Mr Anderson, an employee and director of NPL, and his fellow company directors had deteriorated.  He became suspicious that they were trying to gain access to his computer, which was in his private office, while he was absent (suspended for a number of other alleged acts of misconduct).  He set up a web enabled camera in the office to monitor anyone who might be entering it and attempting to access the computer.  While it was not clear whether the camera captured footage of anyone, Mr Anderson - who thought he was the sole key holder for the office - became aware that someone had entered the room as the camera had been moved.  As a consequence of this he disclosed to NPL the existence of the camera.  NPL believed that the covert surveillance was unlawful, and they subsequently added this to the other misconduct issues that Mr Anderson was already under investigation for.

NPL used HR consultants to carry out a disciplinary procedure.  The HR consultants also believed the covert monitoring to be unlawful and Mr Anderson was dismissed for this and a number of other acts of misconduct.  Mr Anderson subsequently successfully claimed he had been unfairly dismissed.  The employment tribunal rejected NPL's conclusion that Mr Anderson had breached the law by installing the covert camera in his office.  It also rejected four other misconduct reasons put forward by NPL for the dismissal.  It held that in the circumstances the decision to dismiss was outside the band of reasonable responses.  NPL appeal to the EAT.

When considering the issue of covert surveillance the EAT upheld the employment tribunal's judgement.  It was of the view that NPL had not appreciated that privacy is not an absolute right, or that whether there is justification for installing surveillance equipment depends on a variety of competing interests.  In particular, those undertaking the disciplinary process had failed to weigh up the strength of Mr Anderson's interests in discovering whether NPL was accessing his office - a room used exclusively by him - or that the camera view was limited to the extent that the chance of anyone being monitored while outside the office was negligible.  They also failed to consider that, given the fractured relationship between Mr Anderson and the other directors, his concern that attempts may have been made to obtain confidential information from the computer were very real.  Mr Anderson also had genuine grounds to believe someone had previously entered the room, having previously found his computer keyboard had been disturbed.  The absence of any evidence to suggest anyone had actually been caught on camera and had their right to privacy infringed was also relevant.  Taking account of all these factors, the EAT doubted Mr Anderson's actions in setting up the camera were unlawful and concluded that the decision to dismiss was outside the band of reasonable responses.

At first glance this case may suggest that employees are being held to a lower standard than employers when it comes to covert surveillance.  That is not the case - in fact it is holding employees to the same standard as employers would be by requiring a balancing exercise to be carried out when considering if workplace surveillance is lawful.  It just so happened that, in these circumstances, on balance the relevant factors came out in Mr Anderson's favour. 

In 2019, the EAT held that covert recording of a disciplinary hearing will generally amount to misconduct.  Despite the outcome in this case, employers are still reasonably safe in using this principle as a starting point - all the more so if there is an express prohibition on covert recording or surveillance in the disciplinary policy.  What can be taken from the NPL case is that employers cannot just assume that covert recording will always amount to serious misconduct. 

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