United Kingdom: Recent Cases on Staff Surveillance in England and Wales.

United Kingdom

Recent Cases on Staff Surveillance in England and Wales.

An award of just under £16,000 has been made against a British lingerie firm, MJM International, in favour of its former Director and employee, Scott Kilday. Mr Kilday had resigned as a direct result of finding out that a listening device had literally been planted by MJM, in a plant plot in his office. He resigned and brought a claim for constructive dismissal. The Tribunal decided that planting the listening device was “likely to destroy or seriously damage the degree of trust and confidence which an employee is entitled to have in his employer” and that Mr Kilday could not be expected to tolerate that and was entitled to resign.
MJM attempted to justify its action by relying on concerns that Mr Kilday was planning to leave and join a competitor. A key point in the decision was the finding by the Tribunal that MJM could have taken other, less intrusive, steps to protect its business interests if it had concerns about the trustworthiness of Mr Kilday. This article examines how far employers can and should go to “keep tabs” on staff suspected of wrongdoing.
The reasons for wanting to monitor staff are many and various. For example an employer may wish to use covert methods to check on the activities of a member of staff who is taking sick leave but is believed not to be genuinely ill; or the employer may suspect that the employee is running another business “on the side”, or involved in some other form of illegal activity.
In some cases it is acceptable to use CCTV in the workplace. But as it is a question of reasonableness in the circumstances, it is generally very difficult to justify continuous monitoring.
For example, if the employer suspects that items are being stolen from a particular storeroom, then it would be acceptable to install CCTV in that storeroom as that would not involve extensive or intrusive monitoring. On the other hand, if the employer suspects that employees are making mobile phone calls during working hours in breach of company policy, the installation of CCTV to monitor staff activity throughout the working day would be regarded as intrusive and unacceptable.
Continuous monitoring should only be used in very exceptional circumstances, for instance where hazardous substances are used or where the failure to follow procedures could pose a serious risk to life.
Perhaps it goes without saying, but cameras and listening devices should never be installed in areas such as toilets and offices used by individuals.
Normally, the staff should be made aware that they are being monitored. This ought to have the right “deterrent” effect. However, depending on the circumstances, covert recording of staff may be justified if it is part of a specific investigation.
The recent decision of the Employment Appeal Tribunal in City & County of Swansea v Gayle gives some reassurance to employers. The case concerned a member of staff who was suspected of playing squash when he should have been working. The employer hired a private investigator who filmed the employee leaving his local sports centre on five separate occasions when he was supposed to be at work. The employee was dismissed for gross misconduct, and brought an unfair dismissal claim, relying on his right to a private life under Article 8 of the European Convention. The Employment Tribunal found in his favour, ruling that the use of covert surveillance infringed his rights to a private life under Article 8. However when the Council appealed, the Employment Appeal Tribunal ruled that the employee lost his right to privacy because he was defrauding his employer by playing squash in working hours.

Summary
On the basis of the above cases, employers should approach monitoring with caution and use covert surveillance only if they cannot find evidence of wrongdoing using more “orthodox” means of investigation. Targeted and secret monitoring of an employee can only be justified if the employer has strong reason to suspect criminal activity, e.g. following a credible tip-off.