Can an Employer Dismiss an Employee if They Conduct Surveillance in the Workplace?
The Employment Appeals Tribunal (EAT) recently held that an employer had not fairly dismissed an employee who had conducted surveillance, without permission, in the workplace.
A Case of Unfair Dismissal
In the case of Northbay Pelagic Ltd v Anderson, Mr Anderson was dismissed by Northbay on the grounds of misconduct at the same time as two other employees. Northbay instructed three HR consultants to investigate the employees' conduct and carry out any disciplinary hearings and appeals.
Mr Anderson was dismissed and pursued a complaint of unfair dismissal at the employment tribunal. The tribunal held that the dismissal was procedurally unfair on the grounds that the investigation had not been not properly conducted and that the outcome of the disciplinary process had been pre-determined. The tribunal also held that there had been a fatal flaw in the process, as the HR consultant who was the decision maker at Mr Anderson's disciplinary hearing was also an investigator in a disciplinary process involving another employee, and through that role had acquired knowledge relevant to his case.
Northbay appealed against the tribunal's decision. The EAT allowed the appeal.
The Outcome Of The Appeal
The EAT rejected the tribunal's determination that there was a fatal flaw in the disciplinary process. The EAT recognised that the ACAS Code on Disciplinary and Grievance Procedures indicates that, where practicable, the same person should not conduct both the investigation and disciplinary hearing.
However, the EAT said that the ACAS Code does not address the situation where several persons are subject to disciplinary procedures. Even though the cases were related, the EAT concluded that it would have been unreasonable to expect Northbay to hire separate teams of HR consultants to investigate each set of allegations. Furthermore, the EAT stated that on these facts there was no need for the investigation of the employees to be sealed off from each other and it may even be useful for a statement from one witness to be used in other processes if it is relevant to do so.
In respect of the surveillance carried out by Mr Anderson, the EAT held that Northbay should have conducted a balancing exercise between rights to privacy and Mr Anderson's wish to protect confidential information prior to dismissing him. The employer had failed to carry out a balancing exercise, instead simply dismissing Mr Anderson without considering Mr Anderson's reasons for the recordings.
Best Practice For Employers
- Investigate all allegations fully, taking into account all of the relevant facts, including the employee's reasons for their action.
- Consider how to handle multiple inter-connected disciplinary processes for various employees. Whilst each case needs to be looked at on its facts, employers could now consider using one statement for numerous proceedings, which will be more efficient when dealing with such procedures.