Privacy and Dismissals

Northbay Pelagic Ltd v Anderson UKEATS/0029/18 (LINK)

In this Employment Appeal Tribunal (“EAT”) case, the EAT held that the Respondent employer had unfairly dismissed the Claimant employee. The Respondent’s decision to dismiss the Claimant for setting up a covert web-enabled camera in his office was not within the range of reasonable responses open to it.

The Claimant was a director and employee of the Respondent. Over time, the Claimant’s relationship with another director of the Respondent became strained and ultimately broke down, and this led the Claimant’s suspension in March 2016. During the Claimant’s period of suspension, and without the Respondent’s consent, he set up a web-enabled camera which allowed him to view his office remotely, as he suspected that another employee had entered his office and tried to access his computer.

The Respondent dismissed the Claimant for gross misconduct, relying on the setting-up of the secret camera as one of its grounds for dismissal. The Employment Tribunal (”ET”) found that the dismissal was unfair.

The EAT upheld the ET’s decision, finding that the Respondent’s decision to dismiss the Claimant fell outside the band of reasonable responses. It was held that in reaching its decision to dismiss the Claimant, the Respondent failed to carry out a ‘balancing act’ exercise to determine whether the right to privacy of anyone who potentially would have been caught on the camera outweighed the Claimant’s wish to protect the confidential information stored on this office computer. In this instance, as the possibility that individuals entering the room would have been picked up on camera was extremely remote, the Claimant’s wish to protect his confidential information prevailed.

The EAT also held that as the Claimant was not only an employee but also a director of the Respondent, his actions could be perceived as an attempt to protect the business and personal interests arising out of his position as a company director.

Whilst very fact-specific, this case is interesting as it demonstrates that when deciding whether to dismiss an employee for carrying out covert surveillance in the workplace, employers must carry out a balancing act to determine whether other factors, such as a desire to protect confidential information, would justify such actions, in the same way they would if they themselves were seeking to conduct workplace surveillance. The case demonstrates that the specific circumstances of an individual’s conduct will be highly relevant, and covert monitoring of itself may not amount to misconduct justifying dismissal.