Now you see me – using covert surveillance footage in disciplinary meetings

photo credit Chris Chidsey - freeimages.com

When can you use covert surveillance footage of your employees in a disciplinary context?  A relatively simple question, a relatively simple practical answer (“pretty much always”) but a much more complex set of legal considerations for those looking to challenge that approach. 

David Whincup Squire Patton Boggs
David Whincup Squire Patton Boggs

Let us start with the basics – will an Employment Tribunal rule a disciplinary meeting or consequent dismissal invalid or unfair because the employer relies on film or CCTV footage which the employee did not know was being taken?  And to reverse the question, will an employee be legally sanctioned by the Tribunal if he himself pitches up with covert video (or audio – the principles are identical) recordings of his Manager?  In each case, no, even if the party in question had denied making any recording, provided that the footage is probative of the producing party’s case, and especially if it proves something which the other party denied doing.  If objectively the recording shows employee or employer to be behaving inappropriately then the Tribunal will have few qualms in allowing it in as evidence, even if it does tut a little over its provenance.

What is true for the Employment Tribunal is doubly true of an internal disciplinary meeting, since the conduct of that forum is far more a matter for the discretion of the employer.  But legally, where does the employer stand?  A number of possible issues arise:-

  • Article 8(1) of the EU Convention on Human Rights confers a right on any person “to respect for his private and family life, his home and his correspondence“, extended by subsequent case authority into his workplace and outside it. However, this is subject to Article 8(2) – “except… as is necessary in a democratic society… for the protection of the rights and freedoms of others“.  In Barbulescu –v- Romania, the European Court of Human Rights held earlier this year that it is a right and freedom of an employer to take reasonable steps to verify that an employee is doing the work he is there for, and that this legitimises an element of monitoring (in that case, of use of the employer’s electronic communication systems).  By extension, it will also be a right and freedom of an employer to reassure itself that it is not being lied to by its employees in relation to their activities both in and out of work.
  • Predating that decision, but consistent with it, the Employment Appeal Tribunal in City & Council of Swansea –v- Gayle [2013] overturned a finding that an employee’s dismissal was unfair because the filmed evidence of his gross misconduct (playing squash while he should have been [and said he was] at work) was taken without his knowledge and that the Council had not needed that surveillance to show that Gayle was lying. While the Employment Tribunal awarded no compensation, that still left the employer with the stain of the unfair dismissal finding.  The EAT noted that Gayle had been in a public place (a sports centre) when filmed, but it is instructive to ask whether the decision would have been different had that not been the case.  What if the investigator had taken footage through the windows of his house of his doing something inside equally incompatible with a story he was giving his employer?  In my view, if the evidence of deceit were incontrovertible, the Employment Tribunal would still have to find the dismissal justified.  However, if there were any real question mark over the probative value of the footage, then the Tribunal would find a way to discredit it as material the employer could reasonably rely upon, and deem the dismissal unfair.
  • The Information Commissioner’s Office Guidance to the Data Protection Act makes it clear that covert surveillance in the workplace will only be justified where there are grounds to suspect criminal activity or serious malpractice by one or more employees. Even in such circumstances, the surveillance should be neither longer in duration nor broader in extent than reasonably necessary to detect the wrongdoer, and the risk of intrusion on the lives of innocent workers has to be seen to be considered.  Improper use of data which causes harm or distress may be actionable by the employee concerned under the DPA.  Therefore a careful eye must be kept by the employer on how the footage is relevant to the disciplinary proceedings and on whether the subject matter of those proceedings is serious enough to justify the intrusion.  Someone revealed by covert CCTV or similar as guilty of gross misconduct can have no real complaint in consequence.  On the other hand, if the misconduct alleged were less serious – timekeeping, for example – then the use of covert footage to prove the point would be less proportionate.  This would be particularly the case if the footage showed the employee (or someone else) doing something legal but embarrassing and irrelevant – a not sufficiently platonic liaison with a colleague, for example, or exhibiting some not very attractive personal habit.  While that would not prevent the covert recording being used in disciplinary proceedings, it would be possible to anticipate a swift referral to the ICO as a result.
  • As a rule, employers make it clear to staff when CCTV is in operation in the workplace – it might be said to lose its deterrent value if it is covert. But what is the impact of covert workplace recording on the employment relationship as a whole?  It may be just about legitimate to use it in a disciplinary meeting, but does that make covert CCTV recording legally unimpeachable?  In my view not – depending on the extent, duration and focus of the coverage, it would not be hard to create a decent constructive dismissal argument from the carrying out of covert surveillance.  What clearer indication of loss and trust and confidence in you could you have as employee?

So the message for employers must be that if they do intend to use covert workplace CCTV evidence in a disciplinary meeting, it should only be in circumstances where it proves irrefutably the conduct alleged and where that conduct is serious enough to justify not only the dismissal but also the forfeiture of the employer’s investment in covert surveillance and the potentially very serious damage to morale and retention which may arise from the discovery by the wider workforce that they are being spied upon without their knowledge.

By David Whincup, Partner at Squire Patton Boggs.

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