Emily Edwards
Posted on 23 Feb 2021

Covert recordings and unfair dismissal

Northbay Pelagic Ltd v Anderson UKEATS/0029/18

The Employment Appeal Tribunal (EAT) has recently held that an employer was not entitled to dismiss an employee for conducting surveillance in the workplace.

Facts of the Northbay case

Mr Anderson (the employee) was a director, shareholder and employee at Northbay Pelagic Limited (the employer). During the course of his employment, the relationship between him and the employer broke down. The employee was suspended from work in March 2016 and was then dismissed two months later on various grounds of gross misconduct. One of the grounds of misconduct which led to the employee's dismissal was that he had secretly set up a camera in his office to monitor whether anyone was entering the room to access his computer. The employee did this as a result of the belief that an individual had previously accessed the room and covertly accessed his computer. The employee did not seek his employer's consent to set up the camera; however, he was the only person who had access to the camera feed.

The employer engaged three HR consultants to investigate the employee's conduct and carry out any disciplinary hearings and appeals. The employer relied on the employee setting up this camera as one of the reasons for his subsequent dismissal.

The employee brought an Employment Tribunal (ET) claim for unfair dismissal.

ET Decision

The ET upheld the employee's claim on all grounds and awarded compensation. The ET highlighted failures of the investigation, noting the disciplinary process was pre-determined due to the HR consultant acquiring knowledge of the employee's case through their role investigating a colleague of the employee.

The employer appealed to the EAT.

EAT Decision

The EAT allowed the appeal and remitted the case to a fresh tribunal to consider the employee's claim of unfair dismissal on one of the grounds, that he had failed to follow a management instruction.

With regard to the covert recordings, the EAT considered the circumstances in which the employee found himself at the time; namely, the broken down relationship and lack of trust with his employer, combined with the fact that his work computer was likely to hold personal and confidential information. The EAT upheld the ET's finding that the employee had been unfairly dismissed on this ground, stating that the employer should have conducted a balancing exercise between the right to privacy and the employee's wish to protect his confidential information. In the circumstances, the employer failed to consider that the camera was set up in an office to which the employee had exclusive access, and no-one had been captured on camera.

The EAT held that the ET's decision was correct and that the employer's decision to dismiss the employee was not within the band of reasonable responses available to it.

What this means for employers

Whilst this case does not give unequivocal permission for employees to set up covert surveillance at work, it definitely serves as a reminder for employers to carry out the necessary balancing exercise before reaching early conclusions on what acts may amount to gross misconduct. Employers may also want to consider whether their staff handbook and policies cover this topic, and if not, whether this should be the case -  for example, expressly stating in a disciplinary policy that an employee undertaking covert surveillance will be gross misconduct.

One final point to note is the importance of the parties ensuring, at Tribunal hearing, that they have relevant witnesses give evidence. In its concluding comments, the EAT suggested that the employer's failure to call witnesses who had personal involvement in the disputed issues, for example, the HR consultants, resulted in the acceptance of the employee's evidence given.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Emily Edwards to discuss any issues you are facing.