UK: EAT rules that connected disciplinary investigations do not need to be 'sealed off'; dismissal for employee covert surveillance may be unfair

The EAT ruling in Northbay Pelagic Limited v Anderson makes clear that it will not always be fair for an employer to dismiss an employee who has set up covert surveillance at the workplace.  Here, the employee was a director who had reason to suspect that someone had entered his personal office and accessed his computer; he was concerned to protect his confidential information on the computer while he was suspended and so installed a covert camera.   The EAT held that, given the negligible risk that individuals other than those entering the personal office would be captured on camera, dismissal on this ground was not within the band of reasonable responses. The employer should have carried out a balancing exercise between the individual’s right to protect his confidential information and the (limited) impact on the privacy rights of other employees, before dismissing.  Employers could strengthen their hand in this situation by ensuring that relevant policies provide that covert surveillance by an employee is gross misconduct.

The case is more helpful for employers on the issue of connected disciplinary investigations.  The employer had engaged three HR consultants to investigate the connected conduct of the claimant and two other individuals;  in relation to one individual the first consultant would investigate; the second, chair the disciplinary; and the third, hear any appeal.  The individual chairing the claimant's disciplinary took into account evidence she has obtained while investigating the case against one of the others and the tribunal thought this was a fatal procedural flaw.  The EAT disagreed: if an employer is conducting disciplinary investigations into multiple employees whose cases are related, there is no need for the investigation of the employees to be "sealed off" from one another. It would not have been reasonable to expect the employer to hire separate teams of HR consultants to investigate each set of allegations. It can be in the interests of accuracy and coherence that a statement from one witness can be used in several processes if it is relevant.