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City and County of Swansea v Gayle [UKEAT/0501/12]
Mr Gayle was employed by City and County of Swansea (‘the Council’). Whilst he should have been at work, My Gayle was spotted by colleagues at a local sports centre playing squash on two separate occasions. As part of the Council’s investigation into Mr Gayle’s activities, a private investigator was instructed to undertake covert surveillance. This involved taking video footage of Mr Gayle at the sports centre at times when he should have been at work. Mr Gayle was recorded on five separate occasions at the sports centre during his working hours.
Mr Gayle was dismissed. He brought various claims against the Council which included a claim for unfair dismissal.
The employment tribunal held that Mr Gayle’s dismissal was unfair stating that the use of covert surveillance was unnecessary and disproportionate and amounted to a breach of Article 8 of the European Convention of Human Rights (the right to a private life).
The Council appealed the tribunal’s decision.
The EAT overturned the employment tribunal’s decision and held that Mr Gayle’s dismissal was fair.
The EAT concluded that the use of covert surveillance by the Council did not affect the reasonableness of the decision to dismiss.
The EAT also held that there was no breach of Mr Gayle’s right to privacy in circumstances where he was defrauding his employer by claiming to be at work when he was actually visiting the sports centre. Other factors which influenced the EAT’s decision were that the surveillance was in a public place (outside the sports centre) so Mr Gayle had no reasonable expectation of privacy and that the Council was entitled to know what Mr Gayle was doing during working hours.
The EAT’s decision on the facts of this case is a sensible one which employers can take comfort from.
The EAT’s decision has confirmed that employers may, in some circumstances, use covert surveillance as part of disciplinary investigations. Employers should exercise caution, however, as it is likely that the use of covert surveillance will only be reasonable in exceptional circumstances.
Employers should take particular care when using covert surveillance to gather evidence about employees who are off sick. Whilst the evidence may be relevant, it is unlikely that it will be reasonable to rely on it without first having it assessed by a suitable medical practitioner (see Covert surveillance during sickness absence).
Employers who wish to rely on covert surveillance should seek legal advice before doing so.
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The time they have taken to get to know us as an organisation has been invaluable and therefore their responsive advice is pragmatic and focused.