Today’s word is “Avizandum”, which the internet tells me is the name of the King of the Dragons, mate of Zubeia and father Azymondias, respected by all the elves as the most powerful creature in the whole of Xadia. Clearly. Whether the elves would have taken the same view if aware that the King of the Dragons is also the Scottish law term for judges taking time to think about their decisions is a separate question, and one inexplicably ignored by the Edinburgh EAT last month in Northbay Pelagic Limited – v- Anderson.

The case involved fishy goings-on in the Scottish seafood industry and the dismissal of Anderson for alleged misconduct.  In the course of preparing his chunky 52-page decision the Judge did indeed take time in avizandum to consider the Aberdeen ET’s conclusion that Anderson had been unfairly dismissed.  Northbay had been comprehensively battered by the Tribunal on a number of points, including in particular the question of whether it was misconduct for an employee to set up covert surveillance of his employer.

Anderson and his fellow directors had fallen out in a major way.  He became convinced that they were getting into his private office when he wasn’t there, seeking access to his computer to find evidence against him.  He set up a web-enabled camera in his room so that he would be able to monitor any interference with his computer in his absence.  It is to be expected, although the evidence did not make this clear, that the camera was hidden and that no notice of its presence was given to the other Northbay employees.  When it was discovered, his covert surveillance of the office was deemed to be a breach of the law, hence serious misconduct, and for that and a shoal of other alleged misdeeds, Anderson was dismissed.

The EAT Judge noted that all the available commentary on covert surveillance in the workplace was of employees by employers, and that there was nothing dealing with the other way around.  We know that as a rule, the use of footage obtained covertly can be a serious problem for the employer under the GDPR and Data Protection Act 2018, but did that mean that Anderson’s attempts to find out who was getting into his office and why were equally culpable?  We have written before on the usually fatal damage to the relationship of trust and confidence done by an employee who covertly tapes calls or conversations with his employer.  The conclusion of the Employment Tribunal in Stockman here in 2019 was that it will generally be misconduct.  Was this not just the same thing?

The HR consultants used by Northbay had thought as much, but the EAT took a different view.  Just as when carrying out by the employer, covert monitoring by the employee had to be the subject of a balancing exercise, weighing the degree of intrusion on the rights of anyone filmed against the protection of the rights of the person doing the monitoring. It is not automatically unlawful, as the consultants had effectively assumed. Here there were a number of factors in Anderson’s favour:

First, it was his office exclusively and while his employer could not be denied access to it, it was unlikely that Northbay would need it in the ordinary course of events.  Second, the camera was positioned so that its reach into areas outside Anderson’s office was very limited.  Third, Anderson had concrete grounds on which to believe that someone had been in his office when he wasn’t there.  Fourth, his falling out with the other directors was real, serious and seemingly personal and so the fear of another director gaining unlawful access to his computer in an attempt to find something incriminating was in no sense hypothetical or fanciful.

There were also at least two other potentially relevant points which the EAT did not mention.  First, there must be the argument that at least as destructive to relationships as monitoring without notice to employees is actually telling them about it.  Nothing shows your Board colleagues more quickly that things are dead between you than letting them know that you believe them so likely to break into your office and trawl through your computer that you have set up a camera to catch them.  Second, as minority director, Anderson had no-one senior he could safely report his concerns to.

The situation here can also be distinguished from the Stockman position because Anderson’s camera covered a particular fixed area into which (unless his suspicions proved correct) no-one was likely to come.  Moreover, there was no scope for him to “entrap” Northbay management into doing something foolish, since he wouldn’t be there if and when they tried to get into his folders.  This was very different from Ms Stockman’s recording of different conversations at different times in different places, conversations in which she had some chance of steering her unwitting counterparty into saying something daft.

On those grounds, the Employment Appeal Tribunal upheld the ET’s decision – Anderson’s covert monitoring of his employer did not justify his dismissal.  However, this is a very fact-specific conclusion and it needed all the factors in his favour referred to above to get him home on it.  This case is not licence for any employee to set up surveillance on a colleague or colleagues without good objective grounds for suspicion, consideration for the circumstances of others who may be caught up in the surveillance, and the lack of (or more usually, prior exhaustion of) all other practicable avenues.  The employer’s starting point can remain that an employee’s setting up covert surveillance in the workplace is a serious affront to the necessary relationship of trust and confidence, but it must then be prepared to carried out that balancing exercise and see in whose favour the scales of justice actually tilt.  Going straight from discovery of such conduct to dismissal is unlikely to end well.