In this case, Mr Gayle was seen on two occasions (in what appeared to be a weekly commitment) playing squash at a local sports centre during working hours and at a time when he claimed that he was still at work.
The Council undertook a rigorous investigation, employing a private investigator who took video footage showing Mr Gayle emerging from the sports centre on five further occasions when he should have been at work.
Unsurprisingly, the Council dismissed Mr Gayle for gross misconduct. Mr Gayle consequently brought an unfair dismissal claim.
In considering Mr Gayle's claim, at first instance the Tribunal found that he had been unfairly dismissed as the investigation into his misconduct was so thorough as to be unreasonable. The Tribunal also found that covertly filming Mr Gayle had infringed his Convention assured right to a private life. The Council appealed this decision to the EAT.
In a decision that will be welcomed by employers, who often struggle with the thorny issue of how much investigation is enough and would no doubt be nervous about the idea that either too little or too much investigation would result in an unfair dismissal, the EAT found in favour of the Council.
The EAT found that it was unlikely that an investigation could ever be unreasonable on the basis of being overly thorough. Equally, a dismissal could not be unfair on the basis that the employer had acted in a manner which the Tribunal considered distasteful; this would only be relevant if it impacted upon the fairness of the dismissal, which in this case it did not.
The EAT also held that, because the footage of Mr Gayle had been taken in a public place, he could not have had a reasonable expectation of privacy and Article 8 was therefore not engaged.
Article 8 is a qualified right and as such can be restricted in the pursuit of a legitimate aim. Therefore even if it had been engaged, the EAT held that the Council's actions would have been justified: either on the basis of the prevention of crime in stopping Mr Gayle's fraudulent behaviour (criminal offences will rarely, if ever, attract the right to privacy) or on the basis of protecting the rights of the Council (who had contractual rights that Mr Gayle would behave in a specified manner, with which he failed to comply).
Although in this case the use of covert surveillance did not result in an unfair dismissal finding, employers should be careful only to deploy such investigation tactics in cases where they are really necessary, as the Information Commissioner warns against the covert monitoring of employees on the basis that it may transgress data protection legislation.