Veitch Penny LLP - Exeter | Crediton, Devon

Case

McGowan v Scottish Water
Employment Appeal Tribunal - (23 September 2004)

Issues

(1) Unfair dismissal
(2) Covert Surveillance
(3) Article 8 of the European Convention on Human Rights

Facts

Mr McGowan was employed at the company’s water treatment plant near Stranraer. He lived in a tied house close to the plant.

It came to the company’s attention that Mr McGowan may have been falsifying timesheets. Mr McGowan was required to complete timesheets to claim payment for call outs to the plant.

The company considered various courses of action including the possibility of putting cameras inside the process plant. This was rejected on grounds of practicability. It was then determined that covert surveillance of Mr McGowan should be carried out and this took place during one week in September 2000. Private Investigators were appointed who then filmed Mr McGowan coming and going from his home.

Disciplinary proceedings were commenced and video evidence supplied by the Private Investigators was produced. Mr McGowan was ultimately dismissed and he made a complaint of unfair dismissal to the Employment Tribunal.

The Employment Tribunal dismissed his complaint on the evidence. Mr McGowan then appealed arguing that the Tribunal had been incorrect in reaching its decision as it had incorrectly considered the issue of Mr McGowan’s human rights under Article 8 of the European Convention on Human Rights.

Decision

The Employment Appeal Tribunal (EAT) dismissed Mr McGowan’s appeal. It found that the Tribunal was entitled to reach the conclusion it did upon the evidence placed before it.

Article 8 of the European Convention on Human Rights states that :-

“(1) Everyone has the right to respect for his private and family life, [and] his home …

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society … for the prevention of … crime … [or] for the protection of health …”

In reaching its decision, the EAT also took into account the fact that Scottish Water’s suspicions were justified and that at no point had Mr McGowan challenged the finding that he had been dishonest.

Comments

Whilst the EAT agreed with the Tribunal’s decision it did express some reservations. It stated that covert surveillance of a person’s home unknown to the individual raised a strong presumption that the right to respect for private life has been invaded. However, the key issue is the question of proportionality. The EAT noted that Scottish Water was a public corporation and was in effect investigating criminal activity. It had considered other means of investigating the issue such as surveillance in the workplace but given the nature of the fraud, this would not have assisted in quantifying the amount of times Mr McGowan left his house to go to the process plant and in determining whether he was falsifying timesheets.

Rachel Bickle – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it