There will be occasions where employers reasonably suspect that their employees are misusing company time or assets. Given that all employees have a right to privacy under Article 8, is it appropriate for employers to employ covert surveillance to prove their suspicions?

The Employment Appeal Tribunal recently held that in some circumstances covert surveillance can be appropriate.

In the recent case of City and County of Swansea v Gayle, Mr Gayle was dismissed after his employer recorded him playing squash at a gym when he was purporting to be at work.

At first instance, the Employment Tribunal accepted that Mr Gayle had defrauded his employer by playing squash when he should have been at work; however, it was held that the covert monitoring rendered the dismissal unfair. The EAT overturned this decision. In holding the dismissal as fair, it took account of the fact that the covert monitoring took place in a public place. The EAT also held that fraudsters in general could not reasonably expect that their fraudulent activities would be “private” from their employer.

This case should not be viewed as a green light for employers to initiate covert surveillance. There are occasions where covert surveillance may be appropriate, however, employers should be cautious before embarking on any monitoring behaviour.