UK: Right To Privacy: Employer's Reliance In Dismissal Procedure On Material Found By Police On An Employee's Phone Was Not A Breach Of The Employee's Right To Privacy

THE FACTS

Mr Garamukanwa was employed by Solent NHS Trust. He had a personal relationship with a colleague, Ms Maclean. After the relationship had ended, he emailed another colleague, saying that he was concerned that Ms Maclean had formed a relationship with a junior colleague, Ms Smith. He also emailed Ms Maclean and Ms Smith. Ms Maclean complained to her manager, Mr Brown, who told Mr Garamukanwa that the email had been inappropriate. Mr Brown also received an anonymous letter alleging that Ms Smith and Ms Maclean had been behaving inappropriately at work. For a period of about a year, Ms Maclean and Ms Smith were subjected to a campaign of stalking and harassment. A number of anonymous, malicious emails and messages were sent to employees of the Trust and to Ms Maclean and Ms Smith personally, making allegations against them. Property belonging to both of them was damaged.

Ms Maclean complained to the police. Mr Garamukanwa was suspended by the Trust and arrested. However, no charges were brought. During the police investigation, the police found photographs of Ms Maclean's home address on Mr Garamukanwa's phone and a sheet of paper containing details of the email accounts from which the anonymous messages had been sent. The police passed this information onto the Trust, which was carrying out an internal investigation. The investigator found that there was sufficient evidence to link Mr Garamukanwa to at least some of the anonymous emails and recommended that he should be subject to disciplinary proceedings. At the hearing, Mr Garamukanwa voluntarily provided personal emails and What's App messages between him and Ms Maclean. Relying on the information which the police had found on Mr Garamukanwa's phone, the Trust dismissed Mr Garamukanwa for gross misconduct.

Mr Garamukanwa unsuccessfully claimed that he had been unfairly and wrongfully dismissed and that he had suffered race discrimination. He argued that the Trust had breached Article 8 of the European Convention on Human Rights by examining matters which related to his private life and using the evidence from his phone to justify his dismissal. (Article 8 is the European legislation which sets out individuals' rights to respect for their private and family life, their home and correspondence.) The employment tribunal found that Article 8 was not relevant and the EAT upheld this decision, finding that Mr Garamukanwa had no reasonable expectation to privacy in relation to the material. He was refused permission to appeal the EAT's decision.

Mr Garamukanwa brought proceedings in the European Court of Human Rights. He argued that the Trust's decision to dismiss him relied on private material and that the domestic courts' decisions upholding that dismissal constituted a breach of his right to privacy under Article 8.

The European Court of Human Rights dismissed his appeal. It found that Mr Garamukanwa could not have reasonably expected that any materials or communications linked to the allegations would remain private, including those on his personal phone. He had been aware for almost a year before the police investigation that Ms Maclean found his conduct objectionable and that the Trust considered the behaviour inappropriate. He did not challenge the use of the material at any time during the disciplinary proceedings and had actually voluntarily provided additional communications to the disciplinary panel for consideration.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Whether or not reliance of this kind of information by an employer will infringe the employee's right to privacy will rely on the specific facts of each case. In this case, the courts considered that Mr Garamukanwa's awareness that Ms Maclean and the Trust objected to his behaviour was particularly relevant. This is one of several reasons why employers should put employees on notice about allegations of misconduct against them at an early stage.

https://tinyurl.com/yxcqto5pGaramukanwa v United Kingdom (70573/17)[2019] 6WLUK 2019

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