Dismissal based on employee's phone data did not engage art. 8 of the ECHR

Garamukanwa v UK

An employee’s right to privacy was not breached when his employer relied on data found on his phone during a police investigation into allegations of harassment against the employee by another colleague.

Article 8 of the European Convention on Human Rights states:

‘Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.

Background

Mr Garamukanwa worked for the NHS. In June 2012 a colleague, M, with whom Mr Garamukanwa had had a relationship, complained to her manager about emails which Mr Garamukanwa had sent her and other staff about her alleged relationship with another member of staff. Mr Garamukanwa was warned that his behaviour was inappropriate. In April 2013 he was suspended after police informed the trust that they were investigating claims by M that Mr Garamukanwa had been harassing and stalking her and sending anonymous malicious emails to other employees. No formal charges were actually brought against Mr Garamukanwa.

The trust began an internal investigation and disciplinary proceedings. The police provided the trust with the evidence they had obtained, including pictures on Mr Garamukanwa’s phone of M’s house and a picture of all the login details to the bogus email accounts sending the malicious emails. Mr Garamukanwa had voluntarily provided some the communications at one of the disciplinary hearings. He was subsequently dismissed for gross misconduct and brought an unfair dismissal claim alleging his art. 8 human rights had been breached because his employer had relied on private material.

A tribunal dismissed his claim. Article 8 was not engaged because Mr Garamukanwa had no reasonable expectation of privacy:

  • He had himself brought the issue to his employer’s attention by sending the anonymous emails to work colleagues
  • The issue had been a criminal investigation and the police felt that the private evidence from his phone was relevant to the employer
  • The employer had a duty to protect its staff from Mr Garamukanwa’s conduct

The EAT upheld the tribunal on similar grounds. Mr Garamukanwa was refused permission to appeal to the Court of Appeal, so he took his case to the European Court of Human Rights (ECHR).

ECHR judgment

The court ruled his application inadmissible.

Communications from business premises can be covered by the notions of ‘private life’ and ‘correspondence’ under art. 8. In determining whether art. 8 is engaged in such a case, an individual’s reasonable expectations of privacy is a significant, though not necessarily conclusive factor.

The ECHR held that Mr Garamukanwa could not reasonably have expected that any of the material or communications in front of the disciplinary panel would remain private.

In particular, by the time the police had arrested and interviewed him in April 2013 concerning the harassment allegations, he had been aware for almost a year that his employer considered his behaviour inappropriate. He could not therefore have reasonably expected that any material or communications after June 2012 linked to the harassment allegations would remain private.

Nor had he tried to challenge the use of the phone material or any private communications during the disciplinary hearing. On the contrary, he had voluntarily provided the panel with further private communications.

Link to judgment: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-193839%22]}

Comment

The ECHR pointed out that this case can be distinguished from another workplace privacy decision - Barbulescu v Romania - (where an employer had breached art.8 rights by accessing the employee’s private communications) - because in Barbulescu the ECHR found that the employee had not been given notice as to the extent and nature of his employer’s monitoring of his communications.