In brief
In a case in which it was held that an employee was unfairly dismissed for setting up a camera to monitor anyone who entered his private office, the Employment Appeal Tribunal (EAT) has also provided useful guidance on the approach employers should take to investigating and hearing connected disciplinary hearings against more than one employee.
Key takeaways
- In most cases involving covert surveillance the complaint is that the employee has been covertly monitored by the employer; in this case, it was the other way round. The employer should have carried out a balancing exercise between the employee’s right to protect his confidential information and the privacy rights of others before deciding to dismiss.
- Employers may wish to include covert surveillance of any kind at any time by their employees as gross misconduct in disciplinary policies.
- The Acas Code on Disciplinary and Grievance Procedures says that where possible, the same person should not carry out both the investigation and disciplinary hearing against the same person. It is silent on connected disciplinary proceedings against different employees, so the EAT’s guidance will be helpful to employers. It is not necessary to “seal off” connected but not identical investigations from each other. Witness statements may be used in multiple hearings if they are relevant.
- For further information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.
In more detail
Mr. Anderson was an employee and director who, after a breakdown in trust between the directors of the company, was dismissed on five of the seven grounds of misconduct of which he had been accused. One of the grounds was that he had refused to hand over the password to his computer; another was that, having refused to disclose his password, he had secretly set up a camera in his office to monitor whether anyone entered the room to access his computer.
Two other employees were investigated, including a Mr. Richie, at the same time and, although the three cases were not identical, they were connected. Northbay engaged three external HR consultants to carry out the investigations and any subsequent disciplinary hearings and appeals. Mr. Anderson’s conduct was investigated by Ms. Bailey, and his disciplinary hearing was chaired by Ms. Newton. His appeal was dismissed by Ms. Flattery.
The employment tribunal upheld Mr. Anderson’s claim of unfair dismissal on all grounds. His dismissal was procedurally unfair because of failures in the investigation and because the outcome of the disciplinary process was pre-determined. The tribunal also found that there was a “fatal flaw” in in the investigation, because Ms. Newton had investigated another employee’s conduct and in doing so, had acquired knowledge relevant to Mr. Anderson’s case.
Northbay appealed to the EAT, which allowed its appeal.
Fair process when managing connected disciplinary proceedings
The EAT did not agree with the tribunal that there was a “fatal flaw” in the disciplinary process. Ms. Newton had taken a witness statement from Mr. Ritchie during her investigation into his conduct, and had used this knowledge during Mr. Anderson’s disciplinary hearing. The tribunal held that she should not have done so, and refused to consider Mr. Ritchie’s statement at the tribunal hearing.
The Acas Code on Disciplinary and Grievance Procedures states that, where practicable, the same person should not consult the investigation and disciplinary hearing in the same case. It does not refer to a situation such as in this case, where there are several disciplinary procedures. The EAT said that the critical question is whether investigating one of the employees is, in effect, investigating all of them.
It would not have been reasonable to expect Northbay to hire three different teams of HR consultants to investigate each separate employee’s conduct and hold any disciplinary hearings or appeals. There was no need for the investigations to be “sealed off” from one another. If a witness statement is relevant to several processes then it should be used in the interests of accuracy and coherence. The EAT directed the fresh tribunal to consider Mr. Ritchie’s evidence when the case was remitted.
Employee surveillance
In most cases involving covert surveillance the complaint is that the employee has been covertly monitored by the employer; in this case, it was the other way round. The employee, Mr. Anderson, tried to monitor his employer. His suspicions had been aroused because about two weeks before his suspension, on entering his office he found a USB drive and his computer keyboard lying on the floor and he then set up the camera after his suspension from work pending investigation.
The EAT upheld the finding that it was unfair to dismiss Mr. Anderson on this ground.
Employers wishing to use surveillance in the workplace are expected to carry out a balancing exercise and Northbay should have conducted a balancing exercise between colleagues’ right to privacy and Mr. Anderson’s wish to protect his confidential information.
