In a recent Employment Appeal Tribunal (EAT) case, the Tribunal had to rule whether it was reasonable for an employer to dismiss a worker for gross misconduct, as a result of him installing a camera in his office whilst he was suspended from duty.
Colin Anderson was a Director, Shareholder and employee at Northbay Pelagic Limited.
During his employment, the relationship between Mr Anderson and another Director at the company (Mr Colman) became fractious and, in time, completely broke down. Mr Anderson was suspended from work in March 2016 and was then dismissed two months later on various grounds of gross misconduct.
Whilst suspended, Mr Anderson set-up a web enabled camera in his office, as he believed another person had previously accessed the room to then go onto his computer (he had found a USB stick and his keyboard had been moved to the floor). Mr Anderson had exclusive access to the camera feed and set-up the camera without the consent of his employer. Northbay Pelagic Limited relied on the setting up of the covert web camera as one of their reasons for dismissing Mr Anderson.
Mr Anderson brought an Employment Tribunal claim against his former employer for unfair dismissal and was successful.
The Respondent company appealed the judgment but the EAT ruled that the decision in the previous Employment Tribunal hearing was correct and held that the employers’ decision to dismiss Colin Anderson was not within the band of reasonable responses available to it. The EAT found that as Mr Anderson was not just an ordinary employee but a Director and Shareholder of the company that his actions could be perceived to protect the business and personal interests that arose as a result of his work positions.
The EAT also ruled that Northbay Pelagic Limited had failed to conduct a balancing exercise between the right to privacy, and Mr Anderson’s desire to protect his confidential information, where there was a negligible risk that individuals other than those entering his office would be caught on camera.
This case does not grant wholesale permission for employees to set up covert surveillance at work! However, it does serve as a reminder for 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.
As ever, each case turns on its facts and Mr Anderson was able to show that he had concrete grounds to believe that someone had been in his office and as a minority Director there was no one he could safely report his concerns to.
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