By Caroline Jennings

Caroline Jennings explores the use of CCTV as evidence in the Employment Tribunal.

I recently acted for a Respondent in a simple unfair dismissal case where a security guard had been dismissed for gross misconduct for sleeping whilst on duty. The Claimant denied that he was sleeping on duty and claimed that his dismissal was unfair as a result. Of course, the Tribunal did not have to make a finding on whether the Claimant was asleep or not. The key issue to be determined was simple: was the conclusion that the Claimant was asleep whilst on duty a reasonable one based on a reasonable investigation.

The Respondent was assisted by CCTV footage of the Claimant allegedly sleeping whilst on duty. This footage had been seen by the Claimant and formed part of the disciplinary process. It was this footage upon which the Respondent had reached its conclusion that the Claimant was asleep. Having not dealt with CCTV evidence at Tribunal before, I considered how to address the same. Having regard to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004, the overriding objective and the fact that the Employment Tribunal tries to avoid strict rules of evidence, it seemed to me the best way to present the footage to the Judge was as being centrally relevant to the determination of the case – namely was it reasonable to conclude, having watched the CCTV, that the Claimant was asleep.

The Respondent’s witness statements made reference to the CCTV footage and the documents relied upon, such as the dismissal letter and the outcome of the appeal, referred to specific times on the footage. After cross examination of the Respondent witnesses I told the judge that the CCTV footage formed part of the Respondent’s case and asked him to take some time to review it in its entirety as I would be referring to it during cross examination of the Claimant.

The next issue was how the Judge was going to view the footage. Not knowing the availability of any technology at Tribunal (and my solicitor not receiving a firm response from the Tribunal either way), I had taken my laptop to the hearing. It transpired that there were no such facilities and the Judge was content to watch the DVD footage on my (suitably PAT tested!) laptop.

CCTV evidence can be invaluable to both Claimants and Respondents. Before any such reliance however, the party who intends to rely upon such footage should be familiar with the requirements of the Data Protection Act and ensure that any footage is compliant. If it is not, a Tribunal would be likely refuse to watch it as they would potentially be in breach of the Data Protection Act by doing so.

In summary, if it helps your case (and thereby furthers the administration of justice):

–       Make sure that the footage is DPA compliant;

–       Ensure the witness statements refer to it;

–       Bring a (PAT tested) laptop; and

–       Try to keep the footage as brief as possible – a Judge may take issue if he is asked to watch hours and hours of footage!

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