Case Spotlight: Northbay Pelagic Ltd v Anderson
In the recent case of Northbay Pelagic Ltd v Anderson, it was held at the Employment Appeal Tribunal (EAT) that the Employer’s decision to dismiss the employee, because the employee had installed a surveillance camera at work, was in fact unfair.
The complainant was a director and employee of the company, a fishing business, and relations between himself and other Directors had broken down.
In 2016, Mr Anderson was put on suspension for disobeying a reasonable management instruction, and subsequently dismissed for gross misconduct then removed as a director from the company.
There were various grounds given for his dismissal, including failure to follow management instructions and also that following the initial suspension, Mr Anderson had installed a surveillance camera inside his office. A claim was brought at the Employment Tribunal for unfair dismissal.
The tribunal considered that around the time of dismissal, Mr Anderon had raised suspicions around another Director that had sought access to the complainant’s computer password.
The tribunal held that the complainant suspicions were reasonable; by setting up the surveillance camera, Mr Anderson had taken measures to see if his personal data was being accessed without his knowledge or consent. The camera was found not to be covert as it covered both the complainant’s office and another office next door, and also because there was other CCTV in the office building.
The Employment Tribunal upheld the claim and decided that Mr Anderson’s dismissal was unreasonable, as the camera was not covert, so using the camera as a reason for dismissal was not a reasonable ground.
The employer put in an appeal to the EAT and argued that the ET had decided that the dismissal was unfair instead of viewing the fairness through the eyes of the employer. The appeal was rejected, as it was held that the complainant’s actions were demonstrative of him trying to protect his interests as an employee, a director, manager and a shareholder of the business.
The Appeal Tribunal held that the privacy of the other staff in the office was not threatened by the installation of the camera, as there was no evidence of other staff being caught on camera, and it was only those who were trying to access Mr Anderson’s office that were captured on the camera.
Northbay failed to fulfil its obligation to balance the complainant’s interests in protecting his confidential information with the other staff’s privacy rights, the EAT found.
The EAT disagreed with the initial tribunal’s reasoning that the camera was not covert. However, the EAT upheld the decision that the dismissal of Mr Anderson fell outside the band of reasonable responses.
Mr Anderson’s failure to follow a management instruction was remitted to a fresh tribunal to reconsider.
Implications for Employers
If an employee installs a covert camera at the workplace, this could amount to serious or gross misconduct and/or breach of the implied term of confidence and trust between the employer/employee.
Careful investigation into the employee’s reasons for the covert surveillance must be undertaken by the Employer in these instances, for example if the employee has evidence that their privacy was at risk of being breached.
Employers should not jump straight to summary dismissal if a covert camera is found. Instead they should weigh up the employee’s interest to protect confidential information against its own interests, including the privacy rights of other staff, before deciding to dismiss.
While every case is dependant on the facts, Employers should approach this topic with caution; where the risk to privacy of other employees is negligible, a dismissal for gross misconduct may not be justifiable.
If you need any advice on this topic, or anything else HR-related, please give us a call on 0161 603 2156 today for a free, no-obligation chat around how we can protect your business.