An employee's claim for unfair dismissal in relation to his employer's use
of secret surveillance has been dismissed by the Employment Appeal Tribunal
(EAT), in McGowan v Scottish Water, upholding the decision of the Employment
Tribunal.

The employer engaged private investigators to determine whether Mr McGowan
had been falsifying timesheets, which detailed his call out time and formed
the basis for calculation of certain additional payments. The investigators
found that the company's suspicions were indeed correct and the employee was
subsequently dismissed for dishonesty.

Mr McGowan then brought proceedings for unfair dismissal on the grounds that
his right to respect for private and family life under Article 8(1) of the
European Convention on Human Rights had been breached by such secret surveillance,
which included a covert video of him leaving and entering his house.

The EAT found that there was a strong presumption to Mr McGowan's right for
private life being upheld even though the surveillance was carried out from
a public road and raised no issues of trespass. However, in this instance,
the EAT also found that Scottish Water's action was a proportionate response
in order to protect its assets. In addition, it was noted that the employer
had considered other possible courses of actions and had decided legitimately
that surveillance was 'not simply undertaken for whimsical reasons but instead
provided the only practical way of assessing the accuracy of Mr McGowan's timesheets'.

It should be stressed that in this case the EAT noted that the employer was
a publicly owned business and as such had responsibilities to the public to
protect its assets. It is also worth noting that the suspicions were shown
to be correct and employers should carefully consider their grounds for any
such surveillance alongside the requirements of the Employment Practices Data
Protection Code.

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