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Tribunal wrong to rule that secret filming of Claimant made dismissal unfair

Posted by TonyBrownEmploymentSolicitor on June 10, 2013

In the next case, the EAT had to decide whether a tribunal was wrong to rule that an employee had been unfairly dismissed where his employer had secretly filmed him not being at work when he said he was, thus breaching his European Convention right to privacy.

In that case, the employer received information that the Claimant was visiting a sports centre when he was supposed to be at work. To verify this behaviour, the employer secretly filmed the Claimant at the sports centre during working hours. The Claimant was dismissed.

The ET accepted that the employer genuinely believed on reasonable grounds that the Claimant had claimed payment for time he had not worked but still found that dismissal was unfair because the employer had acted unreasonably in secretly filming the Claimant at a location where the Claimant had a reasonable expectation of privacy - his sports club - even if he was not clocked off at the time, thereby infringing the Claimant’s Article 8 right to privacy.

The EAT allowed the employer’s appeal. The EAT said that a tribunal has no right to decide that a dismissal is unfair because it has a distaste for the way in which an employer has behaved. It is not evaluating the employer's conduct in a vacuum. It is asking the question in the context of the employer's decision to dismiss. However reprehensible an employer's behaviour may be, it is only the extent to which that impacts on the fairness of the dismissal which is relevant. The employer might not have behaved entirely to the tribunal’s liking in secretly filming the Claimant: however, if this was unfair, it was no basis for holding the dismissal unfair since it was not relevant to the dismissal itself which was inevitable on the facts.

Comment

In addition, the EAT ruled that the ET had misapplied Article 8. Article 8 states that:

"1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention/disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."

The EAT accepted the employer’s argument that there were factors in this case which taken together meant that there could be no breach of Article 8(1) such that the tribunal would not need to go on to consider whether the provisions of Article 8(2) excused or justified the breach.

First, generally covert surveillance of individuals in public places will not breach Article 8 because individuals will not in those places have a reasonable expectation of privacy.

Secondly, an employer is entitled to know where someone is and what they are doing in the employer's time. An employee can have no reasonable expectation that he can keep those matters private and secret from his employer. To do so would be to run contrary to the contract he had entered with his employer.

Thirdly, the Claimant was a fraudster; he was busily engaged on his own business whilst receiving his employer's money. A person in such circumstances can have no reasonable expectation that their conduct is entitled to privacy.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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