Employment Law Cases
Employee - not employer - carrying out surveillance in the workplace
Northbay Pelagic Ltd v Anderson
It was unreasonable for an employer to dismiss an employee for gross misconduct because the employee had installed a camera in his office whilst he was suspended from duty.
Mr Anderson was a director, shareholder, and employee at Northbay Pelagic (NP). During his employment, the relationship between Mr Anderson and another director, Mr Colman, became difficult and, in time, completely broke down. Mr Anderson was suspended from work in March 2016. While he was suspended, he set up (without his employer’s consent) a web-enabled camera in his office (to which he had exclusive access), because he suspected that someone had entered his room and accessed his computer to find evidence against him. NP believed that the covert surveillance was unlawful, and they subsequently added this to other misconduct issues for Mr Anderson was already under investigation. HR consultants were used to carry out a disciplinary procedure. They also believed the covert monitoring to be unlawful and Mr Anderson was dismissed for this and the other acts of misconduct. Mr Anderson claimed he had been unfairly dismissed. The tribunal rejected NP argument that Mr Anderson had breached the law by installing the covert camera in his office. It also rejected four other misconduct reasons put forward by NP for the dismissal. It held that in the circumstances the decision to dismiss was outside the band of reasonable responses. NP appealed.
The appeal was dismissed.
The EAT said that Mr Anderson wasn’t just an ordinary employee but a director and shareholder, that it was possible his actions were to protect commercial and personal interests that arose as a consequence as those positions. NP should have conducted a balancing exercise between the right of privacy of the employer and Mr Anderson’s wish to protect his confidential information. Mr Anderson had installed a camera in his office, which was normally locked, which he had exclusive access to and there was a negligible risk that people other than those entering would be captured on the camera. He also had genuine grounds to believe someone had previously entered the room, having previously found his computer keyboard had been disturbed. The absence of any evidence to suggest anyone had actually been caught on camera and had their right to privacy infringed was also relevant. Taking account of all these factors, the EAT doubted Mr Anderson’s actions in setting up the camera were unlawful and held that the decision to dismiss was outside the band of reasonable responses.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/00029_18_2801.html
This case emphatically does not give any employee licence to set up surveillance on colleagues without good objective grounds for suspicion, consideration for the circumstances of others who may be caught up in the surveillance, and the lack of any other practicable avenues. It does however serve to remind employers to carry out the necessary balancing exercise on its own interests in terms of the trust, confidence and conduct expected of an employee before drawing early conclusions that such act must amount to gross misconduct.
Readers may recall the case of Phoenix House v Stockman where the EAT held that an employee making secret recordings will generally be guilty of misconduct. Despite the outcome in this case, employers are still reasonably safe in using the Stockman principle as a starting point – even more so if they include an express prohibition on covert recording or surveillance in their disciplinary policy.