304: Covert surveillance: a cause for dismissal?

In today’s blog, we look at the decision of Northbay Pelagic Ltd v Anderson, where the Employment Appeals Tribunal (EAT) considered whether an employer was entitled to dismiss an employee for setting up a covert camera in his office.

Mr Anderson was an employee and director of Northbay Pelagic Ltd. Following an acquisition, relationships with his co-directors broke down and he was suspended over various alleged misconduct issues. Mr Anderson became convinced that his colleagues were entering his office whilst he was suspended in order to access his computer and build a case against him. He therefore installed a secret camera to monitor whether anyone had entered the room. Following an investigation, disciplinary proceedings, and an appeals process, he was eventually dismissed on five grounds of serious misconduct. Mr Anderson then brought a claim for unfair dismissal in the Employment Tribunal.

The Tribunal held that his dismissal was unfair on all five grounds of misconduct, including the covert surveillance. There was also procedural unfairness due to failures in the investigation process and evidence that the outcome of the disciplinary process was pre-determined. Northbay appealed to the EAT.

The EAT allowed part of the appeal and remitted the case to a differently constituted Tribunal to consider whether Northbay was entitled to dismiss Mr Anderson for failing to follow management instruction. The main point of interest is the EAT’s comments on Mr Anderson’s covert surveillance. Against the background of a lack of trust and a difficult relationship between the company and Mr Anderson, the EAT held that Northbay should have conducted a balancing exercise between the right to privacy and Mr Anderson’s wish to protect the confidential information held on his work computer whilst he was suspended. The company had failed to attach any weight to the fact that his office was private and not generally accessed by the public, and that no-one had actually been captured on camera. Mr Anderson’s actions also arose from a desire to protect his interests as an employee, director, manager and shareholder in circumstances where he suspected malpractice. Consequently, the EAT held that Northbay was not entitled to dismiss Mr Anderson for setting up the covert camera in his office.

An employee monitoring their employer is a reversal of the usual position. However, the Tribunal has confirmed that this requires the same balancing exercise as with employer surveillance in the workplace. In any disciplinary proceedings, employers must therefore ensure that they conduct a fair investigation and consider the background to the employee’s actions. It is worth considering whether to include employees’ covert surveillance as an example of gross misconduct in disciplinary policies and procedures.