On this issue you also need to remember that there is a considerable difference between using available evidence and monitoring.
To give a clear example if a fight broke out between members of staff you surely would not argue that you could not use available video, because it was not covered by your monitoring policy, to resolve any issues - who started it, was one acting in self defence etc.
The posed question may not be as clear cut, but rules on monitoring are not the same as rules of evidence, and different fairness criteria may apply.
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