Thank you for your answer but it is somewhat confusing. The employer surly must be able to produce reliable evidence in order to dismiss someone.
Whilst the complaint is smoking in a building its in a door way with the cigarette outside, at best this is not a 'clear' breach of the rules but maybe a 'misunderstanding' of the law. It is not Gross misconduct and falls within the rhelms of a verbal or written warning (as outlined from ACAS). However, since she was already on a final warning this is how she was dismissed.
Now the employer relies on CCTV footage to prove the incident took place which must be licensed by the ICO. An extract taken from 'your rights' website.
The Employment Tribunal generally does not have formal rules about what evidence is admissible and if a party to Tribunal Proceedings wishes to rely on CCTV recordings in support of their case, the Tribunal is likely to allow it if the recordings are relevant to the proceedings and will help clarify the issues and allow it to meet the overriding objective of the Tribunal, which is to deal with the case justly.
However, anyone who captures and stores images through a CCTV system is likely to be required to comply with the Data Protection Act (DPA), as the images are likely to contain personal data. The DPA imposes a number of duties on anyone who processes personal data. If your employer failed to comply with his duties under the DPA in obtaining the footage, it is likely that he will not be fair to allow him to rely on the footage in any proceedings against you
. For more information on the DPA see the Information Commissioner’s website at www.ico.gov.uk
The recording of CCTV footage may also be an interference with your right to privacy, protected under Article 8 of the European Convention of Human Rights. Although this right is not absolute, any interference will need to be done in accordance with the law and it must be necessary to achieve a legitimate objective. If your employer failed to comply with the DPA, then the interference will not be ‘in accordance with law’ and therefore breach your Article 8 rights
. In addition, any filming that is disproportionately intrusive will breach your Article 8 rights.
This is the clarification im trying to get to my original question. Can an unlicensed CCTV system capture images and subsequently be used in a disciplinary hearing? According to your 'your rights' evidently not!
However, what you are saying is "Does the employer have an honest and genuine belief the misconduct took place?" Well the belief would not be there if it had not been for the CCTV footage? An employer surly must prove beyhond reasonable doubt (especially when it comes to dismissing someone) that the evidence is 100% correct.
By definition of the DPA the system should not be used without a license, with this being the case, how can the system be used to proof an incident took place?
Now the argument could be made that yes she was seen smoking in a doorway which is subject to diciplinary action, however, the images have been obtained illegally so i really need to go back to my original question.
CCTV images be used in employment disciplinaries?