The Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law, gives public sector employees the right to bring a claim against their employer for a breach of the Convention.
In McGowan v Scottish Water (IDS 771), the employment appeal tribunal (EAT) upheld the tribunal's decision that the employee's human rights had not been breached by the company when it used covert surveillance of his home to establish whether he had been falsifying his timesheets.
What was the history to the case?
Mr McGowan worked at a remote water treatment plant and lived nearby. Scottish Water suspected that he was falsifying his timesheets and claiming for work he hadn't done. They engaged a firm of private investigators to watch his house from the opposite side of the public road, and made a video of his comings and goings to compare with his timesheets.
He was subsequently dismissed, following which he brought proceedings for unfair dismissal on the ground that his human rights under article 8 (1) of the Convention had been breached by his employer's surveillance. That is, the right to respect for his private and family life, home and correspondence.
Why did the tribunal decide against him?
The tribunal rejected his claim, and said that Scottish Water could justify what it had done under article 8 (2) in that it was 'in accordance with the law and necessary...in the interests of...public safety.'
Instead, it agreed with Scottish Water when it argued that, had it not carried out the surveillance covertly, there was 'a risk of a water incident which could affect public safety and the health of those served by the treatment works.' It was necessary, therefore, to protect the company's assets.
Mr McGowan had cited only one incident which had any impact on his private and family life in that his wife was seen on a video made by the investigators which was used during the disciplinary procedure. The tribunal rejected this allegation, saying that his wife could have been seen at any time by any one using the public road.
Should Mr McGowan not have been warned?
The tribunal said that although it would usually expect an employee to be warned that they may be subjected to covert surveillance, failing to do so was not a breach of human rights.
It decided that if Mr McGowan had been told about the possibility of covert surveillance being carried out, he could easily have found out when he would be subjected to it and altered his activities accordingly.
What did the EAT decide?
The EAT said that, at first sight, covert surveillance of a person's home, unbeknown to him or her, 'raises at least a strong presumption that the right to have one's private life respected is being invaded'. It was however justified in this case because it was to prevent criminal activity and/or injury to the public.
It concentrated on the key question of proportionality (that is, the balance between the individual's and society's interests).
It said that the covert activity went to the heart of the investigation in that the aim was to check the accuracy (or otherwise) of Mr McGowan's timesheets.
Mr McGowan's alleged misconduct forced the company to investigate and this was not therefore a case where the surveillance was undertaken 'for external or whimsical reasons'. In the appeal tribunal's view, Scottish Water had a right to protect its assets and the public's safety and its actions were not therefore disproportionate.
Curiously, when considering the issues of justification and proportionality, the EAT thought it, 'a very important aspect of the case' that Scottish Water's suspicions had been proven correct. What is unclear from the judgement is how they would have applied this justification in a case where the employer's suspicions turned out to be wrong.