16 March 2021
Law at Work - 2021 – 4 of 6 Insights
When we think of workplace monitoring we tend to think of the many ways in which the employer can monitor employees: CCTV, software productivity tools, recording calls (particularly in regulated industries) and formal meetings. But sometimes it happens the other way round. In Northbay v Pelagic Limited v Anderson. The EAT had to consider whether it had been fair for an employer to dismiss a director for, amongst other things, putting a secret camera in his own office as he had reason to believe someone in the workplace had unlawfully accessed his computer. He was on suspension at the time, being investigated for other alleged misdemeanours.
The case was remitted for fresh consideration but the EAT expressed the view that an employment tribunal had been entitled to find that the covert recording did not constitute gross misconduct. Some might find this surprising. What could be worse that snooping on your fellow employees, potentially breaching their right to privacy and at a time when you were not even supposed to be in the workplace? Context is everything. The employee was the director and shareholder of a small business, locked in an internecine dispute with co-directors whom he suspected of wanting to harm his other commercial interests. It also looked like his computer had been disturbed previously. There was no evidence to suggest that anyone's privacy had been compromised by his actions, and his office was in fact only usually frequented by him (although there were other keyholders).
In this case the employer asserted that Mr Anderson had broken data protection law and had also potentially breached the duty of trust of confidence which an employer owes to employees. At first glance that position might appear credible. But the EAT agreed that the tribunal had been entitled to reject these conclusions, finding the employer's dismissal on this ground outside the range of reasonable responses. Helpfully, the EAT pointed out that the ICO Employment Practices Code on Covert monitoring envisages that covert monitoring might be appropriate in cases where malpractice is suspected. It also pointed out that the Code has very little to say about monitoring in the workplace by employees.
Which is not to say that this decision is a green light for employees to think covert monitoring is acceptable, far from it. If anything, it highlights that monitoring by employees is unchartered territory. If employers wish to treat covert monitoring as misconduct, they should spell this out to employees. In many instances where covert recordings have been made by employees, employment tribunals have ruled such evidence to be admissible. So there is no clear-cut rule which means that it is only the employer's prerogative to carry out monitoring in the workplace.
What does this mean for employers?
by multiple authors