The law says that one of the fair reasons for dismissal is misconduct. In Northbay Pelagic Ltd v Anderson, the Employment Appeal Tribunal (EAT) held that when Mr Anderson installed a web-enabled camera in his office, the company should have carried out a balancing exercise between their right to privacy and his wish to protect his confidential information instead of dismissing him for misconduct.
Basic facts
Northbay Pelagic Ltd was set up in 2014 to acquire the business of a company called Fresh Catch Ltd which had been owned and controlled by the Anderson family. Three companies had shareholdings in the new entity. One of the new directors, Mr Jan Colam, controlled two of the companies while members of the Anderson family, who were also directors, owned the third (called Cool Seas).
The relationship between Mr Colam and the Andersons began to sour after the acquisition and by the end of 2015 it had completely broken down. Mr Anderson was suspended in mid-March 2016 and dismissed for misconduct at the end of June. He was also removed as a company director.
One of the reasons given for his dismissal was that, after his suspension, he had covertly set up a web-enabled camera in his office which his employer said was unlawful. He, however, said he had done so because he thought that someone had entered his room and accessed his computer. In addition, Mr Colam had been asking for access to his computer password, which had aroused Mr Anderson’s suspicions.
He lodged a claim of unfair dismissal.
Tribunal decision
Upholding the claim, the tribunal held that the disciplinary process was procedurally unfair as it was under the control of Mr Colam. In addition, it found that the camera installed by Mr Anderson could not be unlawful because it was not covert and only covered his own office and that of his father. It concluded that the decision to dismiss him for misconduct fell outside the band of reasonable responses open to the company.
The company appealed on a number of grounds. Firstly it argued that the camera was covert and therefore unlawful; and secondly that the tribunal had substituted its own view as to what the company should have done instead of considering whether its actions were within the band of reasonable responses open to it. In other words, the tribunal had adopted a “substitution mind-set”.
EAT decision
In evaluating Mr Anderson’s actions and the company’s reaction to them, the EAT pointed out the need to remember that Mr Anderson was not an ordinary employee but a director of the company and of Cool Seas. This, said the EAT, left open the possibility that his actions were designed to protect commercial and personal interests that arose from his status as a director and shareholder.
With regard to the camera, the EAT held that even if it was covert (as the company had argued), the company should have carried out a balancing exercise between their right to privacy and Mr Anderson’s wish to protect his confidential information.
In addition, the company had failed to attach any weight to the fact that the camera was set up in a room to which, as a rule, only Mr Anderson had access. As such, the risk that someone else would be captured on camera (which they had not been) was negligible.
Combined with the tribunal’s concerns about the control Mr Colam exercised over the disciplinary process, the EAT concluded that the tribunal had been entitled to take a narrow view of the company’s conclusions. It was not therefore convinced that the tribunal had substituted its view for that of the company and it endorsed the tribunal’s conclusion that the decision to dismiss had fallen outside the band of reasonable responses.