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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> McGowan v. Scottish Water [2004] UKEAT 0007_04_2309 (23 September 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0007_04_2309.html Cite as: [2005] IRLR 167, [2004] UKEAT 7_4_2309, [2004] UKEAT 0007_04_2309

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APPEARANCES

 

 

For the Appellant	Mr T Ginesi, Solicitor Of- Messrs A C White Solicitors 23 Wellington Square AYR KA7 1HG
For the Respondent	Mr E McHugh, Solicitor Of Messrs Dundas & Wilson Solicitors 191 West George Street GLASGOW G2 2LD

SUMMARY
HUMAN RIGHTS

Article 8 of the Convention


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee against a finding of the Employment Tribunal sitting in Stranraer that he had not been unfairly dismissed by the respondents.
2. The issue before us entirely related to whether or not the Tribunal had properly approached the question raised by Article 8 of the European Convention on Human Rights which is in the following terms:-

"(1) Everyone has the right to respect for his private and family life, [and] his home ….

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society.... for the prevention of.... crime... [or] for the protection of health...."

3. The background to the matter is that the employee appellant worked at a water treatment plant near Stranraer, living in a tied house, very close to the plant. The employer became suspicious that self-completed timesheets by the employee with regard to call out time and periods when it was necessary for him to attend to the plant in question, were being falsified and did not represent what was actually happening. After considering various aspects of what should be done in this respect, including the possibility of putting cameras inside the process plant, which the employer rejected on grounds of practicability, it was apparently determined that covert surveillance should be carried out upon inter alia the appellant employee, and this was effected during one week in September of 2000. Precisely how this was done is not entirely clear, save that it appeared that the private investigators who were employed on this task, secreted themselves opposite the front door of the appellant's house and filmed him coming and going as the case may be. A video or videos were produced relating to this exercise. The dismissal, which was effected, related to the grounds of complaint which the employer was investigating and was effected after a disciplinary process. The Tribunal determined that that process was fair and no challenge was made in that respect. The issue was solely whether or not Article 8 of the Convention was engaged and the appellant's rights in that respect breached, which would in turn taint the whole process, it was submitted, and, thus, render the dismissal unfair.
4. The relevant findings of the Tribunal are as follows:-

"Did the respondents act in such a way as to breach the applicant's right under article 8 (1) of the Convention?

The applicant's home was situated close to his place of work. He had to reside in his home as a consequence of working at the water treatment works. The applicant was filmed on occasions leaving his home and making his way to the water treatment works or returning to his home from the water treatment works. We heard of only one incident in which the applicant claimed it had any impact on his "private and family life his home and his correspondence" This was in relation to the alleged comment made by Mr Allan to the applicant about the applicant's wife. It may be the case that Mr Allan did see the applicant's wife on a video. We were not told how this was any more intrusive than say the applicant's wife being filmed on CCTV in any of the large towns or cities in Scotland. In any event we have no doubt the applicant's wife could have been seen by anyone using the public road.

The surveillance was carried out from an area on the opposite of the public road to the applicant's house. What was observed by the investigators could have been observed by any member of the public using the public road. Miailhe France No 2) (1997) 23 EHRR 491 supports the view that where the authority of the subject of the video evidence is undertaken in public view, he or she may have no reasonable expectation of privacy. The applicant was followed from his home to his place of work and there is in our view nothing unlawful in this in either in the United Kingdom or Convention law.

In any event we are of the opinion that if the respondents had acted in such a way as to breach the applicant's right under article 8 (1) of the Convention their interference of the right was justified in terms of article 8 (2) of the Convention.

The Regu1ation of Investigatory Powers (Scotland) Act 2000 was not in force before 18 September 2000 when the surveillance was completed. It was not suggested that when the surveillance was carried it out was other than "in accordance with the law" when it was carried out.

One of their employees had implied to the respondents that the speed of the pumps was being altered to generate call outs and the respondents had a belief that work which the applicant claimed to be carrying out was in fact not being carried out. In the event that surveillance was carried out in any other way than by covert surveillance then there was a risk of a water incident which could affect public safety and the health of those served by the treatment works.

Further Mr McSeveney from his investigations had a belief that there was excessive usage of diesel on the site. The covert surveillance was therefore necessary in our view for the prevention of a crime in the light of Mr McSeveney' s belief.

Even if we had been of the view that the respondents had breached the applicant's right under Article 8(1) of the Convention and the breach was not justified under Article 8(2) of the Convention we have in our view to exercise a balance between the gravity of the offence being investigated and the measures taken to investigate the offence.

Penwhirn Water Treatment Works was situated in a rural area. The applicant and Mr Allan were the only employees based at the site. Mr McSeveney had a belief that there was excessive usage of diesel on the site. Both Mr Rodden and Mr McSeveney in the light of their knowledge and experience of water treatment works and in particular Penwhirn Water Treatment Works were of the opinion the number of call outs was not justified by the condition of the works. They had suspicions that the applicant may be involved in behaviour which generated alarm calls and thus payments to the applicant from the respondents.

Mr Rodden had expressed his concern on one occasion to the applicant and Mr Allan and Mr McSeveney repeatedly raised the issue of the high number of call outs. The respondents had invested significant technical support in the works. The relationship between the applicant and Mr McSeveney which was poor shortly after Mr McSeveney took up his appointment as team leader as evidenced by the terms of the fax dated 31 March (production A 2l) had not been improved but had deteriorated.

The respondents could have reported their suspicions to the police The police may have carried out some investigations but may have taken the view the apparent high usage of diesel was a matter between the applicant and his employers In any event, any police investigation would not have assisted the respondents over their concern at the high number of call outs.

Mr McSeveney did consider other forms of surveillance than that carried out by the investigators. We do not consider these would necessarily be less intrusive. Mr McSeveney did say he considered surveillance within the process building would have been more intrusive. We did not accept his evidence in this regard. It is clear to us that if surveillance was carried out within the process building then there were a number of potential problems. Such surveillance would not assist the respondents in reaching any conclusion about the apparent high level of usage of diesel. Surveillance within the process building could not be installed without the knowledge of the applicant and Mr Allan. There was little doubt the applicant and Mr Allan would have resisted strongly the installation of surveillance equipment within the process building. The installation of surveillance equipment within the process building would not assist the respondents in investigating the activities of the applicant and Mr Allan within the sludge building nor would it allow the investigators to view activities which would allow the respondents to decide if Mr McSeveney's suspicions regarding the usage of diesel had or had not any foundation. It seems to us to be entirely reasonable for the surveillance to be carried out other than from within the process building of the water treatment works.

The applicant and Mr Allan were not warned of the possibility of covert surveillance being carried out. The decision in Klass & Others -v-Germany (1978) A 28 supports the proposition that failure to inform a person subjected to surveillance cannot be incompatible with Article 8 of the Convention since "it is this very fact that ensures the efficacy of the interference". We would expect that normally an employer would warn employees that under certain circumstances they may be subjected to covert surveillance. We consider this to be an exception to what we consider would be the normal rule.

The water treatment works was in a remote location. If the applicant and Mr Allan had been advised of the possibility of covert surveillance being carried out they could readily have found out when they were being subjected to surveillance and if appropriate altered their activities.

The covert surveillance carried out was to view the activities of the applicant and Mr Allan only. The respondents were entitled to expect the firm of private investigators would direct the surveillance only at the activities of the applicant and Mr Allan and not at the family of either. What the applicant and Mr Allan did within their dwelling houses was of course no concern to the respondents. In their dwelling houses the applicant and Mr Allan were not carrying out any work related activities.

The applicant and Mr Allan submitted timesheets to Mr McSeveney. These timesheets related to core hours of working, call outs, night checks, sludge pressing duties and planned overtime hours on Saturdays and Sundays. Mr McSeveney was not in a position to know the reason for the call outs. He could not challenge the claims for night checks, sludge pressing duties, and planned overtime as he no evidence night checks, sludge pressing duties and planned overtime were not being carried out. If he had withheld payment of any claim for any such duties carried out by the applicant and Mr Allan he would have breached the contracts the applicant and Mr Allan had with the respondents or alternatively the applicant and Mr Allan could successfully pursue claims there had been unlawful deductions from their wages.

The respondents were investigating a potentially serious matter. Payment of public money to the applicant was involved. The respondents were involved in supplying water for consumption by the public. The water had to be of the required standard. The matter was in our view of the utmost gravity. The respondents could not adopt any other reasonable measures to investigate their concerns.

In the circumstances we conclude none of the evidence in this case has been unlawfully, unreasonably, or illegally obtained."

The following cases were cited to us:-

Post Office - v Foley; HSBC Bank Plc -v- Madden [2000] IRLR 827

X - v- Y [2004] EWCA Civ 662

P.G. and J.H. -v - The United Kingdom. No. 44787/98

Halford -v - United Kingdom [1997] IRLR 471

Miailhe - v- France 86/1991/338/441 - 25/2/93

Niemietz -v - Germany 72/1991/324/396 - 16/12/1992

Martin -v - McGuiness (Outer House Lord Bonomy) - 2 April 2003

Ali - v- First Quench Ltd (unreported) CA 22/3/01.

Information Commissioner - Data Protection Code- Part 3 Monitoring at Work

5. Mr Ginesi, on behalf of the appellant, predicated his position on the approach of the Court of Appeal in X v Y supra as to the interaction between the Convention of Human Rights and the corresponding Human Rights Act and section 98(4) of the Employment Rights Act 1996. It has to be stated at once that the Human Rights Act was not in force at the time of the surveillance being effected, it coming into effect in October 2000. However, this point is of no validity because the respondents are a public authority falling within the definition of such in the Scotland Act, and, in particular, section 57 thereof, which required, since it came into force in 1998, that such authorities be compliant with the Convention in their activities. Thus, it is not in dispute that one or way or another, Article 8 applied at the material time. The question is, therefore, whether it was breached.
6. Mr Ginesi, in a detailed submission, submitted that each of the Tribunal's conclusions were invalid in law.
7. In the first place, they had misdirected themselves on the issue of Article 8(1) the matter not being one of privacy but a matter of respect for private and family life (P G and J H v The United Kingdom supra, approved in X v Y supra). Relying on Niemietz and Halford supra, he submitted that some surveillance of employees at work, where it involved surveillance of non-work activities, is likely to be seen as an infringement of Article 8. He also referred to the case of Martin v McGuiness supra.
8. The matter was compounded in this case by the fact that the appellant's father-in-law had died during the surveillance period. This was known to the employer but no action to suspend or remove the surveillance was effected.
9. Mr Ginesi went on to submit that the subsidiary findings of the Tribunal, with regard to lawfulness and the provisions in relation to prevention of crime and health and safety, did not apply in the context of the present case. Finally, he submitted that the surveillance was disproportionate on the findings of fact and the Tribunal's conclusion in this respect was wrong because the respondents could have restricted their surveillance purely to the workplace and workplace activities, reported the matter to the police or warned the applicant that suspicions had been raised and that his workplace activities only would be monitored. Such, it was submitted, would have rendered the surveillance proportionate. What happened in this case went far beyond it.
10. Mr McHugh, appearing on behalf of the respondents, submitted that the issues were essentially a question of fact, although he did not dispute generally the law that applied. The Tribunal, he submitted, had applied their mind to the right question, they had reached conclusions they were entitled to reach, and this Tribunal should not interfere upon the usual rules that the industrial jury, namely, the Employment Tribunal's view of the facts should prevail.
11. We confess we have not found this matter easy, because, at least at first sight, covert surveillance of a person's home, unbeknown to him or her, which tracks all people coming and going from it, quite apart from persisting with it over a period of bereavement, raises at least a strong presumption that the right to have one's private life respected is being invaded and if the issue stopped there we might have considered that the Article was engaged. We are not impressed equally with the approach of the Tribunal when it comes to the prevention of crime, lawfulness or health and safety. All these issues seem to us to be speculative in the present case. What seems to us to matter, however, is the question of proportionality.
12. As Lord Bonomy plainly understood and so observed in Martin supra, while there may be rights to a respect of one's private life, such can be put in issue by the very person subsequently asserting a breach of the Convention. Thus, in the Martin case, when a pursuer seeks to raise an action for damages in relation to injuries he alleges were caused by a defender, which relate to his state of health and various other practical aspects of injury, he must expect that the defender will exercise legitimate means to check or explore the case, and, thus, covert surveillance in that case did not amount to a breach of the Convention, so the Judge held, entitling the pursuer to a remedy.
13. We take a similar approach in the present case. It has to be borne in mind that the respondents are a public corporation and they were investigating what was effectively criminal activity in the sense of fraudulent timesheets. They did consider how best to deal with the matter particularly with regard to inserting cameras in the workplace but concluded that such would be impractical and ineffective. It has also to be borne in mind that it could at least be argued that the tied house was part of the workplace. Be that as it may, the aim of the surveillance was to see or quantify the number of times the appellant left the house to go to the process plant which would plainly bear upon the accuracy or otherwise of the subsequently submitted timesheets. Thus it went to the heart of the investigation that the employer was bound to carry out to protect the assets of the company. The position is, therefore, that by alleged conduct on the part of the appellant, namely, the issue of false timesheets, the respondent is forced into action to investigate the matter. It is not the case where surveillance was simply undertaken for external or whimsical reasons. In our view, it goes to the essence of the obligations and indeed rights of the employer to protect their assets. Looking at the matter this way, it therefore seems to us that it is not disproportionate, and, accordingly, the findings of the Tribunal that the Article was not breached can be supported on this basis. It has to be borne in mind that the suspicions of the employer were found to be established and the subsequent disciplinary process, which is not challenged as a matter of fairness, resulted in the appellant being dismissed on grounds of dishonesty, a very important aspect of the case.
14. It has to be recorded that this is a majority decision. The minority member was of the view that the surveillance operation was not justified against the background of the Convention and was accordingly disproportionate. He would have allowed the appeal.
15. In these circumstances the majority are of the view that the Tribunal reached the conclusion it was entitled to reach upon the evidence and we will not interfere with it. The appeal is refused.