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The European Court of Human Rights (ECHR) has ruled that covert surveillance to tackle workplace theft did not breach an employee’s right to privacy under Article 8 of the European Convention on Human Rights.

What are the facts of the case?

Five supermarket cashiers were dismissed after hidden CCTV cameras captured them stealing. The cameras had been installed as part of an investigation into large stock discrepancies. The employees brought unfair dismissal claims which were rejected by the Spanish courts who found that, although no prior notice of the surveillance had been given (a prerequisite under Spanish law), this was justified by the employer’s reasonable suspicion of theft.

What did the ECHR decide?

The employees appealed to the ECHR, claiming that their Article 8 rights (respect for one’s private life) had been breached by the covert video surveillance.

Initially, the ECHR upheld the claims on the basis that the video surveillance had targeted all staff, rather than particular individuals, without any time limit and that the employees had not been informed of the surveillance in accordance with Spanish domestic law.

The Spanish government then asked for the case to be referred to the Grand Chamber of the ECHR, which overturned the decision and deemed that the employer did not breach the employees’ right to privacy. It commented that there was a balance to strike between private and public interests and considered the following issues:

• whether the employees had been notified of the possibility of video surveillance;
• the extent of the monitoring by the employer and the degree of intrusion into the employees’ privacy;
• whether the employer had provided legitimate reasons to justify monitoring and the extent of those reasons;
• whether less intrusive methods of monitoring would have been possible;
• the consequences of the monitoring for the employees; and
• whether the employees had been provided with appropriate safeguards.

The Grand Chamber of the ECHR found that the prolonged suspicion of theft was a legitimate reason for surveillance. Furthermore, the monitoring took place in a public area and the duration was not excessive. A limited number of people viewed the recordings, which were used solely for the purposes of the investigation. The ECHR recognised that, under Spanish law, notification of surveillance is required. However, it concluded that the severity of the misconduct meant that surveillance without prior notification was in the public interest.

What can employers take from this decision?

This decision shows that it is possible to use covert monitoring in a targeted investigation. However, employers should be wary of viewing this as a green light on all surveillance, given the court’s careful consideration of all the above factors, and should maintain a strict policy that covert surveillance should only be used when the employer believes there is no less intrusive way of tackling the issue. Appropriate safeguards on use of the images should also be established.

The Edinburgh Employment Appeal Tribunal has considered this yesterday.

In 2017, the Glasgow Employment Tribunal found that foster parents, Jimmy and Christine Johnstone, were employees of Glasgow City Council. This meant they should benefit from the same employment rights and protections as other Council workers.

The Tribunal based its decision on a number of factors including the following:
• The Johnstones were obliged to personally perform the foster care work;
• In exchange they were paid £32,000 per annum;
• They were allowed paid holidays;
• It was a condition of the agreement that neither of them took other work without the Council’s consent;
• There was a requirement to submit a daily parental report which indicated a degree of day-to-day control;
• The Johnstones were also required to attend weekly meetings; and
• They had no real discretion as to how the work they were required to do should be undertaken.

The Tribunal found that the degree of control was such that the claimants were employees of the Council working under a contract of service.

Glasgow City Council appealed against the Tribunal’s decision and the appeal was heard this week by the Employment Appeal Tribunal. The case is adjourned whilst Lord Summers considers his judgment.

Earlier in July we posted an update on the launch of consultation on the proposal for a single employment rights enforcement body in the UK, contained in the government’s Good Work Plan (earlier update here). The consultation period for this proposal closed on 6 October 2019. Both the Employment Lawyers Association (ELA) and Citizens Advice Bureau (CAB) have now published their feedback on the proposal.

The CAB welcomes the proposal taking the view that the current enforcement system is not working. They argue the current system is complicated for complainants as it consists of multiple enforcement bodies that have varying powers on a range of complaints. For example, both the Gangmasters and Labour Abuse Authority (GLAA) and HMRC Statutory Sick Pay Disputes Team have a responsibility to process complaints relating to sick pay, but only a complaint to the GLAA may lead to an investigation on wider practice. A harmonised system would provide workers with a single place to go for help on all their basic employment rights.

The ELA also suggested that the current system is not an effective means of enforcing individual’s employment rights and that too much reliance is placed on the Tribunal process. The ELA were positive about the proposal, suggesting that it would be a single point of contact for individuals and could be a central organisation providing materials to educate workers and employers about employment rights.

However, both the ELA and CAB raised concerns over aspects of the proposal.  In particular, these concerns included the time required to amalgamate the existing system into a single body and that sufficient funding and resources will need to be allocated to co-ordinate such a move. The ELA suggested that the single enforcement body should not erode the existing skills and expertise within separate organisations, singling out the Equality and Human Rights Commission in particular for its expertise in equality issues and recommending that its role should not be interfered with. It also raised the concern that a single enforcement body that is more accessible to employees could increase the volume of state investigations compared to the number of Tribunal claims, as employees may feel more comfortable making a claim to a government body than bringing a Tribunal case. Further management time and resources would need to be allocated to dealing with such investigations and it will need to be determined whether this would be the most efficient means of dealing with employees’ complaints.

Following the responses to the consultation, it is yet to be seen whether the government will alter the proposal put forward by the Good Work Plan.

We are reminded by a recent decision of the Employment Appeal Tribunal (EAT) that the purpose of an investigation should be limited to an investigation of the facts. It is important not to cross the line and move into decision-making territory. An issue that arises is whether recommendations about disciplinary action being taken can reasonably form part of the investigation. In addition, what information can be excluded?

In Dronsfield v. The University of Reading the claimant was a professor who was dismissed for gross misconduct after he had admitted to having a sexual relationship with one of his students. We wrote about this case as a result of it making the headlines in 2016 (re-read here). The claim has in fact been heard by both the Employment Tribunal (ET) and EAT twice.

According to the University’s governance rules, the professor could only be dismissed for conduct of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment”. The head of Dronsfield’s department, Professor Green, was appointed, along with an HR colleague, to jointly carry out an investigation to ascertain whether any such conduct had been established.  

Professor Green and his HR colleague drafted an investigation report and submitted it to the university’s in-house lawyer for review. Following the solicitor’s advice, Green omitted certain parts of the report that would have been favourable to Dronsfield’s case. These included Professor Green’s opinions that there was no evidence that Dronsfield’s conduct had been immoral, scandalous or disgraceful, or that it was an abuse of power or breach of duty.

The investigation recommended that disciplinary action should be taken.  Dronsfield was ultimately dismissed and appealed the dismissal, which was rejected. He then brought a claim for unfair dismissal on the grounds that the amendment of investigation report rendered his dismissal procedurally unfair. However, the ET found that the dismissal had been fair. Although the investigation report had been amended, the ET held that it fairly set out the investigators’ position and the amendments did not mean that it represented a false or incomplete position. The EAT also found that he had been fairly dismissed and, on appeal, the case was remitted to a fresh tribunal.

The fresh tribunal found that the dismissal had been fair as it was fair and reasonable for the investigators to rely on the advice of their solicitors and to omit any “evaluative opinion” in the report. The tribunal found that the report set out the investigators’ position fairly and the amendments did not render it false or incomplete. They found that such opinions should be left to the disciplinary panel and not be contained in the investigation report.

Although the university was ultimately successful in defending the claim against it, this case acts a reminder of the extent of conclusions that should be set out in an investigator’s report and what the investigator’s role is. The investigator should be limited to deciding whether or not there is a case to answer.  The case also referred to now fairly well settled law that HR’s advice in relation to disciplinary matters should be restricted to matters of law and procedure, rather than questions of answerability, which should be reserved for the investigating officer.

Investigators should be trained to ensure that they act within the scope of their role and need to understand what is being required of them. Disciplinary allegations should be narrowly drafted and the procedure to be followed when investigating matters needs to be clear.

To discuss training of investigation managers or a policy review, please get in touch with your usual Dentons contact.