In City and County of Swansea v Gayle, the Employment Appeal Tribunal (EAT) has ruled that the Employment Tribunal (ET) was in error in finding that an employer’s use of covert video surveillance to check up on an employee suspected of playing squash when he was supposed to be at work was a breach of his rights under Article 8 of the European Convention on Human Rights (ECHR) which rendered his dismissal unfair.
The EAT criticised the ET’s finding that Article 8 of the ECHR, which guarantees the right to a private life, was engaged. When filmed, the employee had been in a public place and his employer was entitled to know where he was, since he was clocked on at work and therefore claiming pay. In addition, a person involved in wrongdoing can have no reasonable expectation of privacy.
Furthermore, the ET cannot adjudicate upon any freestanding claim of a breach of Article 8. Whether an employer acted reasonably or unreasonably in dismissing an employee is determined by Section 98 of the Employment Rights Act 1996. There is no separate right to hold a dismissal unfair because the ET does not like the way an employer behaved. It is only the extent to which an employer’s behaviour impacts on the fairness of the decision to dismiss that is relevant to the ET’s judgment.
The ET had found that the employee’s conduct was a fundamental breach of the implied contractual term of mutual trust and confidence and his dismissal was justified. In going on to criticise the employer for covertly filming him, the ET was not dealing with any matter relevant to the fairness of the dismissal for the reason which had been established.