UK: Unfair dismissal - covert surveillance may not render dismissal unfair

The EAT has ruled that an employee has no reasonable expectation of privacy when filmed in a public place during hours when the employee should have been working – an employer is entitled to know what someone is doing during working hours. The employee was also acting fraudulently by claiming pay for time not worked and, as such, could have no reasonable expectation of privacy.

The employer's decision to engage a private investigator to covertly film the employee outside a sports centre during working hours (even though it already had oral evidence of misconduct) did not render the decision to dismiss unfair in this case. However, it is important to bear in mind that the position could be different where the filming is carried out on private premises or if the evidence obtained is not used fairly, for example if an employer jumps to assumptions about the fitness to work of an employee on sick leave without obtaining appropriate medical input. (City and County of Swansea v Gayle)