Labour & European Law Review Weekly Issue 328 18 July 2013
Before dismissing someone for misconduct, employers have to have a genuine belief that the employee is guilty, based on reasonable grounds and following a reasonable investigation. In City and County of Swansea v Gayle, the Employment Appeal Tribunal (EAT) held that the key issue was whether the investigation supported the reasons underpinning the employer’s belief.
Mr Gayle was seen at the local sports centre playing squash on 29 July and 26 August 2010 when he should have been at work. The Council undertook covert surveillance on five other occasions from September to November 2010, all of which showed him playing sport during working hours.
Following an investigation, the Council dismissed him and Mr Gayle lodged a claim for unfair dismissal, among other things.
The tribunal found that the employer had a genuine belief that Mr Gayle was deliberately claiming time he had not worked and absenting himself from work for his own personal business. That belief was based on reasonable grounds and justified dismissal.
However, the tribunal disagreed with the investigation carried out by the Council, saying that by 26 August it had all the evidence it needed that Mr Gayle was being untruthful about his whereabouts during work time. After that date, the Council no longer had a legitimate reason to place him under surveillance or even if it had, the methods used were “disproportionate and unjustified”. In other words, it had been too thorough.
The dismissal was therefore unfair due to a breach of Mr Gayle’s right to privacy under article 8 of the European Convention. However, it reduced Mr Gayle’s compensation to nil for contributory conduct.
The EAT allowed the appeal. It did not consider that taking photographs of Mr Gayle in a sports centre (particularly as the footage showed him just outside the doors) could constitute a breach of article 8 as he could have no reasonable expectation of privacy when he was in a public place.
In any event, he was “on the clock” when at the centre and could not therefore expect to keep his whereabouts secret from his employer. He was also guilty of fraud as he “was busily engaged on his own business whilst receiving his employer’s money for his employer’s business.”
The statutory question was whether the employer’s actions in treating the reason (in this case misconduct by taking time off during the working day) was a sufficient reason for dismissing him. Although that involved asking not only whether the employer had a genuine belief in the employee’s guilt and whether they had reasonable grounds for it based upon a reasonable investigation, the reasonableness of the investigation had to be looked at within that context.
The key issue was whether the investigation supported the reasons underpinning the employer’s belief. Tribunals could not hold a dismissal unfair because they were critical of the way in which an employer behaved. It was not evaluating the employer’s conduct in a vacuum, but was asking the question in the context of the employer’s decision to dismiss.
All that mattered was the extent to which the employer’s behaviour impacted on the fairness of the dismissal. Accordingly, it is only if the faults in the investigation are relevant to the dismissal that it is likely to be held unreasonable.
It was highly unlikely that an investigation could be considered unreasonable because it was too thorough, unless it contained errors that made the dismissal of the employee unfair in some other way. That was not the case here.
The EAT found that the tribunal, in criticising the employer for covertly filming the claimant, was “not dealing with any matter relevant to the fairness of the dismissal for the reason which had been established”.