City And County Of Swansea v Gayle

For the purposes of section 98(4) of the Employment Rights Act 1996, an employment tribunal must assess the fairness of the decision to dismiss. Criticism of an employer’s conduct, or of an investigation which was more extensive than necessary, cannot by itself make a dismissal unfair unless it bears on that decision.

Covert observation of an employee in a public place during working time did not engage Article 8 where it revealed conduct by which the employee was defrauding the employer. An employee has no reasonable expectation that such conduct will be kept secret from the employer. Non-statutory data-protection guidance did not independently render an otherwise reasonable misconduct investigation unfair.

The claimant was employed by the Council. It obtained covert video evidence showing him at a sports centre on several occasions when he had not clocked out and was claiming to be at work.

The Cardiff Employment Tribunal rejected claims for race discrimination, wrongful dismissal and holiday pay. It found that the claimant’s misconduct justified dismissal, but held the dismissal unfair because the Council’s covert surveillance unjustifiably interfered with Article 8 and because it was ignorant of data-protection guidance. It made no compensatory award because of the claimant’s contributory conduct.

The Council appealed. The central issue was whether the surveillance or the Council’s treatment of data-protection guidance could make the dismissal unfair despite the established misconduct and the reasonable grounds for the employer’s belief.

1. Appeal allowed. The Employment Tribunal erred in law. A declaration was substituted that the claimant had not been unfairly dismissed.

2. The covert video evidence did not interfere with Article 8(1). The claimant was filmed in a public place, during time for which he was being paid to work, while concealing from his employer that he was pursuing his own activities. In those circumstances he had no reasonable expectation that his whereabouts and conduct would remain private from the employer. The Tribunal therefore had no need to consider Article 8(2).

3. In any event, if Article 8(2) had arisen, the Council’s aims could have included preventing crime and protecting the employer’s rights. The proportionality inquiry asks whether the measure went no further than was necessary for such a legitimate aim.

4. The determinative statutory inquiry was section 98 of the Employment Rights Act 1996. In a misconduct case, the employer’s genuine belief, reasonable grounds and reasonable investigation are assessed only in relation to the fairness of treating the misconduct as a sufficient reason for dismissal. There is no separate right to a finding of unfair dismissal merely because a tribunal dislikes an aspect of the employer’s conduct.

5. An investigation will not ordinarily be unreasonable merely because it was more thorough than necessary. The further surveillance neither undermined the evidence of misconduct nor made the dismissal unfair. The Tribunal’s criticism of the filming was irrelevant to the fairness of the dismissal.

6. The Employment Practices Data Protection Code was guidance, not a statutory code imposing new legal obligations. The Tribunal did not identify how ignorance of that guidance caused any unreasonable conduct relevant to dismissal. That reasoning could not support a finding of unfair dismissal.

• Employment Appeal Tribunal: Allowed the Council’s appeal and substituted a declaration that the claimant was not unfairly dismissed: [2013] UKEAT 0501_12_1604.
• Employment Tribunal, Cardiff: Held that the claimant’s dismissal was unfair, while making no award because both the basic and compensatory awards were reduced by 100% for contributory conduct. It dismissed the remaining claims.