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A Fishy Business? – Covert Surveillance by an Employee

Was it misconduct for an employee to set up covert surveillance of his employer?  In this unusual case, a director set up a covert camera in his office so he could monitor any attempt to access his computer in his absence.

North Bay Pelagic Limited -v- Anderson (EAT)

Mr Anderson was an employee and director of North Bay Pelagic Limited a company operating in the Scottish seafood industry.  He had a falling out with his fellow directors and was convinced something fishy was going on and that they were entering his private office when he wasn’t there to access his computer and build a case against him.  Angling to catch them, he installed a covert camera.

When he was caught, it was alleged this was serious misconduct. His was dismissed for this together with a boat load of other allegations.

The Employment Appeal Tribunal (EAT) found in this case that such secret filming was not automatically unlawful and that in deciding whether to dismiss an employer was required to carry out ‘a balancing exercise’, weighing the degree of intrusion against the rights of the person doing the monitoring.

In Mr Anderson’s case, he had a private office, he had grounds for believing someone had entered his office when he wasn’t there, had seriously fallen out with his fellow directors and his fear of other directors unlawfully trawling his computer to find evidence against him was not fanciful.

In relation to this one specific element, the EAT found that Mr Anderson’s conduct did not justify his dismissal.  However, in relation to other issues raised in North Bay’s appeal, specifically, in relation to a failure to follow a management instruction, its appeal was allowed and remitted to a differently constituted employment tribunal to determine whether he had been fairly dismissed.

Comment

This is an unusual and interesting case and, despite the findings, any covert recording by an employee can be treated as serious and damaging to the relationship of trust and confidence. However, employers must ensure they conduct a fair investigation and need to consider as part of the decision-making process the balancing exercise referred to above.  Employers may also want to consider amending their disciplinary procedures to include employees undertaking covert surveillance as an example of gross misconduct.

If you have any queries in relation to the issues raised by this case or any covert monitoring, please contact our Employment Team on 01228 552600 or 01524 548494.

 

This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.

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