Veitch Penny LLP - Exeter | Crediton, Devon

Case

Avocet Hardware plc v Morrison
Employment Appeal Tribunal (17 February 2003)

Issues

(1) Employment Tribunal
(2) Evidence
(3) Admissibility

Facts

In September 1998, Morrison had been employed as a telephone sales operative. He was dismissed in June 2001. Avocet alleged that Morrison had made inappropriate comments to a customer, which were then investigated the by the company. He had made a telephone call to a customer who he had known for some time and with whom he got on well. The calls were overheard by the interception of their telephone call by a relevant manager.

Morrison made a claim for unfair dismissal. He argued that whatever comments had been made, they had been taken completely out of context and the customer in question had known that they had not been made seriously. Avocet submitted that the dismissal was for gross misconduct and was fair.

The central issue surrounded the admissibility of an important piece of evidence. Avocet had monitored Morrison’s telephone calls and had wanted to rely upon evidence produced by that monitoring. The admissibility of this evidence then became the central issue of the case.

The Tribunal concluded that allowing Avocet to reply upon the evidence would be an interference with the right of Morrison to respect of his private life, and was in breach of Article 8 of the European Convention on Human Rights.

Avocet appealed the decision, submitting that the Tribunal had been incorrect to conclude that it was obliged to respect private life accorded by Article 8(1).

Decision

The appeal would be allowed. The Tribunal’s decision would be set aside and a direction given that the material in question would be admissible in evidence.

The Appeal Tribunal stated that if the evidence had been placed before the Tribunal, it would have been to be in accordance with the law for the purposes of Article 8 of the Convention. It would be unusual for those engaged in business on the telephone not to be alive to the possibility that their discussions may be monitored. It could not be said that evidence would be excluded where it was admissible and probative. Where that evidence had been adduced in breach of some regime, there was a statutory route available to the person affected for damages.

The Tribunal had been wrong to decide that it could not hear the evidence upon which Avocet was relying. The error would affect the whole of the Tribunal’s evaluation of the evidence, when it had not been the Tribunal that had caused the interception or the breach of the regulatory regime in the first place. In addition, Avocet would wish to have its right to a fair hearing vindicated by the ability to bring forward a defence to the employee’s claim.

Comments

This case shows that a private employer who has obtained evidence of an employee’s misconduct by unlawfully intercepting their telephone calls can insist on that evidence being heard by a tribunal if the employee is dismissed and claims unfair dismissal. However, if an employer is a public authority the position is different, as Article 8 of the European Convention on Human Rights would bind them.