Secret monitoring may not be ground for dismissal

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Northbay Pelagic Ltd v Mr Colin Anderson

Will carrying out covert surveillance mean that there has been a fundamental breach of contract? It is an issue that you might expect will arise where an employer has been secretly monitoring an employee. However in Northbay Pelagic Ltd v Mr Colin Anderson it was the other way round as it was the employee who had placed a secret camera in his office who had been accused of committing an act of gross misconduct.

Employee accused of committing an act of gross misconduct

Mr Anderson was a senior employee who had his own office which he was able to securely lock. He had become suspicious that someone was accessing his computer after entering the room and finding a USB drive and his computer keyboard lying on the floor. As a result, he decided to set up a web enabled camera in his office which would record those who entered his room. When the camera was discovered it was considered that it was evidence Mr Anderson had been guilty of gross misconduct.

Secret monitoring may not be ground for dismissal

It was held that the employer in concluding that this amounted to gross misconduct had acted outside the band of reasonable responses. Mr Anderson had been entitled to be suspicious in light of what he had found and the camera was set up to check whether someone was accessing his personal data without his consent. Those were actions which could not be classified as illegal. The right to privacy had to be balanced against the employee's desire to protect his confidential information. 

Key takeaway point

The decision should not be regarded as a green light for covert monitoring. Whether there is a justification for installing surveillance camera depends on a variety of competing interests. Rights to privacy must always be taken into account and if the space which is being monitored is one to which employees have regular access it will be much more difficult to justify. The position is still that generally warnings should be given that monitoring is taking place but there may be exceptions e.g. to detect theft.  

Do you require more information regarding grounds for dismissal?

If you have any queries regarding grounds for dismissal, please get in touch with our expert listed below who will be happy to advise you. 

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