Will a covert recording by an employee justify dismissal?
This question was explored by the Employment Appeal Tribunal (EAT) in the recent case of Northbay Pelagic Limited v. Anderson.
Mr Anderson was an employee and director of Northbay Pelagic Limited and indirectly represented a minority shareholder. He was dismissed on the basis of several allegations of gross misconduct, one being that Mr Anderson had placed a covert security camera in his own office after he was suspended. He took this action as he believed that somebody had entered his office, which was meant for his exclusive use, to access confidential information on his computer. He formed this view after he found a misplaced USB stick in his office and his keyboard on the floor.
The Employment Tribunal (ET) found that Mr Anderson’s actions did not qualify as gross misconduct and ultimately concluded that he had been unfairly dismissed by Northbay. That decision was appealed by Northbay and the case was heard by the EAT.
Mr Anderson had installed the camera in his own office and its field of view was very limited. The EAT accepted that there was only a negligible risk that a breach of any other employee’s privacy would occur given this restricted field of view. It also placed reliance on the fact that the claimant was not just an employee but was also a director, represented a shareholder and, as accepted by the company, had other business interests.
The EAT held that the ET was entitled, on the facts of this case, to reject Northbay’s argument that Mr Anderson’s actions in placing the covert camera constituted gross misconduct. The EAT upheld the ET’s conclusion that dismissing Mr Anderson for this reason was therefore not within the band of reasonable responses open to Northbay.
The EAT considered that Northbay had omitted to conduct a balancing exercise between the right to privacy and Mr Anderson’s wish to protect his confidential information.
What does this mean for employers?
This case does not give employees permission to install covert cameras in their workplaces. The particular facts and especially the fact that the company was aware of, and had accepted, the claimant’s multiple interests was of particular significance in this case.
However, the decision does show that what might seem to be an act of gross misconduct does not necessarily justify dismissal. Employers should always consider employees’ reasons for carrying out the act in question, as well as investigate the harm and/or potential harm of the action. The implied term of mutual trust and confidence should always be at the forefront of employers’ minds, but they must also consider an employee’s reasons before making a finding of gross misconduct.