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Covert surveillance and the expectation of privacy

The covert monitoring of employees will rarely be justified and can prejudice an otherwise fair dismissal process. However, in City and County of Swansea v Gayle covert video surveillance of an employee who had claimed to be at work when actually playing squash was found to be irrelevant to the unfair dismissal claim.

Neither Article 8 of the European Convention on Human Rights (the right to respect for private and family life) nor the Data Protection Act 1998 had been breached on the basis that: –

  • The video had been filmed outside the sports centre. Generally, there  is no expectation of privacy in a public place.
  • An employer is entitled to know where someone is and what they are doing during working hours.
  • The employee had been defrauding the employer by claiming pay for time he had not been working. In the circumstances there was no reasonable expectation of privacy.

When assessing whether it would be reasonable to covertly monitor an employee, a balance has to be struck between the individual’s right to privacy and the need to protect the interests of the business. Here, the EAT was particularly influenced by the fraudulent nature of the employee’s misconduct.

Part 3 of the Information Commissioner’s Employment Practices Code gives guidance on employee monitoring including covert surveillance. It recommends that employers undertake ‘impact assessments’ to demonstrate that monitoring achieves the correct balance.

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