Covert surveillance justified

Covert surveillance justified
McGowan v Scottish Water, EAT, 23 September 2004

Scottish Water became suspicious that Mr McGowan, a worker at a water treatment plant, had been falsifying timesheets in relation to call out time, for which he received additional payments. As part of its investigation for the disciplinary process, Scottish Water engaged private investigators to film him coming and going from his house. Evidence gathered during this exercise showed that the company’s suspicions were justified and McGowan was subsequently dismissed for dishonesty.

In the tribunal claim that followed, McGowan argued that the covert surveillance of his home breached his rights under the Convention on Human Rights (respect for private and family life) rendering the investigation procedure, and consequently the dismissal, unfair. The tribunal disagreed and found that the dismissal was fair.

The Employment Appeal Tribunal (EAT) agreed with the tribunal’s decision (by a majority), although it expressed some reservations. It held that covert surveillance of a person’s home, unbeknown to the individual, raises a strong presumption that the right to respect private life has been invaded.

However, the key issue was the question of proportionality. It took into account the fact that Scottish Water was a public corporation and was effectively investigating criminal activity regarding potentially fraudulent timesheets. Scottish Water had considered other means of investigating, such as surveillance in the workplace but that would not have assisted in quantifying the number of times McGowan left his house to go to the process plant, which in turn determined the accuracy of his timesheets.

The EAT also took into account the fact that Scottish Water’s suspicions were justified and that McGowan had not actually challenged the finding that he had been dishonest.

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