European courts continue to grapple with the limits on employee
protections under Article 8 of the European Convention of Human
Rights. Article 8 protects a person's right to respect for
their private and family life, and our blog has actively tracked
developments on the subject (to review prior rulings, see
here). The UK's Employment Appeal Tribunal (EAT) recently
further defined the limits of an employee's expectations of
privacy in the workplace when it held that an employee had no
reasonable expectation of privacy in emails and photographs from
his personal phone that had been passed to the police.
In the case, Garamukanwa v Solent NHS Trust,
UKEAT/0245/15/DA, an employee of a hospital, Mr. Garamukanwa, had
been in a relationship with a nurse (a fellow employee) that ended.
He believed that she left him for another nurse at the hospital,
and sent emails to both individuals. An anonymous individual then
reported their relationship to a manager, an anonymous Facebook
account was set up under the nurse's name, and anonymous
malicious emails were sent to the hospital's management
regarding the nurse. In light of these anonymous actions, the nurse
felt threatened, and she complained to the police. Mr. Garamukanwa
was suspended pending an investigation, but the police decided to
not take any action. In the course of the investigation, however,
the police passed all relevant evidence to the employer, including
emails and photographs from Mr. Garamukanwa's personal iPhone.
The hospital subsequently terminated his employment.
On appeal, Mr. Garamukanwa argued that his employer could not
use the information gathered by the police from his iPhone as a
basis for his termination, because it violated his Article 8
rights. The EAT rejected this argument. Importantly, the EAT ruled
that the employer's termination of Mr. Garamukanwa based on the
emails and photographs did not even engage Article 8, let alone
violate its provisions. Significantly, the EAT held that because
the emails were sent to the work addresses of the recipients, dealt
with work-related matters, and affected the work of the nurse and
other recipients, Mr. Garamukanwa did not have a reasonable
expectation of privacy under Article 8. The EAT found it relevant
that the company did not rely on any other personal materials from
Mr. Garamukanwa outside of what the police provided to them when
deciding to terminate him.
This decision provides clarification for companies investigating
misconduct. Importantly, even if the employee is using a private
device to harass co-workers, if the actions are not solely personal
and are connected with work-related matters and the workplace, the
employer may be able to rely upon those communications, even if
they contain some personal material, as grounds for
Disability Discrimination Protections
Multi-national employers should also be aware of a recent
expansion of disability discrimination protections under the
UK's Equality Act 2010. The act prohibits treating an employee
unfavorably because of something arising from the
employee's disability unless the unfavorable treatment is a
proportionate means of achieving a legitimate purpose. The case,
Risby -v- London Borough of Waltham Forest,
UKEAT/0318/15/DM, centered on a training course for employees at a
location that did not have wheelchair access. One of the employees,
who is paraplegic, was extremely upset about the decision, and
shouted, swore and made a racist comment toward a junior colleague.
The employee was immediately dismissed. The EAT overturned his
dismissal, however, holding that he was terminated because of his
disability. The EAT reasoned that while his short temper was a
personality trait, the employee would not have been angered by the
decision to hold the workshop in a venue without wheelchair access
if he had not been paraplegic, and therefore his disability was an
"effective cause" of his conduct.
This is a broad reading of the Equality Act of 2010, and expands
the types of conduct that are protected as 'caused' by a
disability. Employers operating in both the US and the UK should be
particularly aware that this differs markedly from the protections
available to US employees under the Americans with Disabilities Act
(ADA). While the ADA protects from discrimination against
disabilities, the regulations are clear that, "[t]he
definition of an impairment...does not include common personality
traits such as poor judgment or a quick temper where these are not
symptoms of a mental or psychological disorder." Nonetheless,
employers in the UK should be vigilant when terminating an employee
with a disability to ensure that the termination is not based on
conduct that may be related to a disability.
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