McGowan .v. Scottish Water (2005) IRLR 167
An employee was suspected of falsifying his time sheets. The employers considered various ways of investigating the matter before deciding to undertake covert surveillance of his home.
They employed private investigators who secreted themselves opposite the front door of his house and, over the course of a week, videoed all his movements. Videos were produced that confirmed the employers' suspicions and led to his dismissal.
The employee claimed that his dismissal was unfair because his right to respect for his privacy and family life had been breached. A tribunal rejected his claim and the EAT, by a majority, upheld that ruling.
The EAT acknowledged that covert surveillance raises at least a strong presumption that the right to respect private life is being invaded. However, the right to respect for private life can be put in issue by the very person asserting a breach of the European Convention of Human Rights. Whether a surveillance operation breaches the person's right to have his private life respected is a question of proportionality.
On the facts, the employer's surveillance was not disproportionate. The employee's alleged conduct in submitting false timesheets forced the employers to investigate and the aim of the surveillance was to quantify the number of times he left his house to go to work, which would plainly bear on the accuracy or otherwise of the timesheets. Therefore, it went to the heart of the investigation, which the employers were bound to carry out to protect their assets.
The employers considered the possibility of placing cameras in the workplace, but concluded that that would be impractical and ineffective. The surveillance was not undertaken for external or whimsical reasons. The EAT also noted that the employers' suspicions had been established and that the fairness of the subsequent disciplinary process was not challenged.
Imelda Clancy v Edward Clancy (2003)
A terminally ill testator was able to understand that the document she signed in hospital two days before her death, was the will in respect of which she had given instructions to her solicitor when she had testamentary capacity. The will was therefore valid, although it had not been shown that the testator had testamentary capacity at the time she signed it.
This was an action by the claimant (‘Imelda') for the revocation of a grant of probate. The grant of probate was obtained by the defendant, Imelda's brother (‘Edward') and related to a will made by their mother (‘Ivy'). The will was made on 28 March 2000, two days prior to Ivy's death. Ivy signed it when she was in hospital. The will was said to accord with instructions given by Ivy to her solicitor in December 1999. Imelda challenged the will on the basis that her mother lacked testamentary capacity and did not know or approve of the will's contents because by 28 March 2000 she was terminally ill with cancer, heavily sedated and deteriorating physically at a rapid rate. Edward was the sole beneficiary of the March 2000 will.
HELD: (1) The evidence of both medical experts was that Ivy probably did not have the necessary capacity when she executed the will in hospital on 28 March 2000. Nor did the evidence of family members, the solicitor and a staff nurse support Edward's case that Ivy had such capacity. A conclusion that Ivy lacked testamentary capacity was consistent with her state of health less than a day after she executed the will. Edward failed to discharge the burden to prove that Ivy had testamentary capacity when she executed the March 2000 will. The March 2000 will was prepared in accordance with the instructions Ivy gave the solicitor in December 1999.
It was not disputed that Ivy had testamentary capacity at the time she gave those instructions. Ivy subsequently read the draft will sent to her by the solicitor and was satisfied that it was made in accordance with those instructions. She was able to understand that the document she signed on 28 March 2000 was the will in respect of which she had given instructions to the solicitor three months before and which she had discussed with the solicitor on 24 March 2000. Application of the principle in Parker v Felgate (1883) 8 PD 171 therefore led to the conclusion that the will dated 28 March 2000 was Ivy's true last will.