Employee expectations of privacy in the workplace – employers should still proceed with caution but a recent case highlights how privacy rights could be waived.

In the case of Garamukanwa v. United Kingdom, the European Court of Human Rights (ECHR) has declared that an employee could have no expectation of privacy in relation to communications and photographs that resulted in his dismissal.

Mr Garamukanwa was dismissed from Solent NHS Trust (the Trust) following a disciplinary hearing which found he had harassed another colleague, Ms Maclean. He had been in a relationship with Ms Maclean. When that ended, he proceeded to send her and his other colleagues emails making various allegations against Ms Maclean, some of which were sent anonymously. Ms Maclean complained to her manager and later the police in relation to harassment and stalking.

The police investigated the matter and found photographs of Ms Maclean’s home address on Mr Garamukanwa’s phone. The evidence was passed to the Trust. At Mr Garamukanwa’s disciplinary hearing, Mr Garamukanwa voluntarily provided the panel with further evidence including personal email and WhatsApp correspondence between him and Ms Maclean. Relying on the evidence from the police, the Trust dismissed Mr Garamukanwa on the basis of gross misconduct. Mr Garamukanwa brought various claims against the Trust, including for unfair dismissal. He argued that the Trust had breached section 6 of the Human Rights Act 1998 and Article 8 of the European Convention of Human Rights by examining matters which related to his private life on his phone and using that as evidence to justify his dismissal. Article 8 protects a person’s right to a private life and correspondence. This was not accepted by the Employment Tribunal or the Employment Appeal Tribunal. The Court of Appeal refused permission to appeal and so Mr Garamukanwa brought proceedings to the ECHR.

The ECHR considered the fact that emails were sent from Mr Garamukanwa’s work account and referred to both work and personal matters. It found that this did not automatically mean that it would fall outside the scope of “private life” for the purposes of Article 8. However, in the circumstances, it found that Mr Garamukanwa did not have a reasonable expectation of privacy in respect of the photographs on his phone that the police had shared with the Trust. By the time of his arrest, he had been aware for almost a year that Ms Maclean had raised concerns about his behaviour with the Trust. The court considered that this was sufficient prior notice that allegations of harassment had been made against him and he could not have reasonably expected that, after this date, any materials or communications which were linked to the allegations would remain private. The court also considered it relevant that Mr Garamukanwa had not challenged the use of the photographs found on his phone, or any of the private communications during the course of the disciplinary hearing, and that he had voluntarily provided the disciplinary panel with further private communications of an intimate nature between him and Ms Maclean. In the circumstances, there was no reasonable expectation of privacy over any of the material or communications before the disciplinary panel.

Comment

The case shows that during a disciplinary process employers should remain cautious when attempting to rely on what could amount to private material. The following points arising from this case should be considered:

1. Emails sent from a work email account and which address work and personal matters may still be covered by Article 8 of the European Convention of Human Rights.
2. Material passed from the police to an employer is likely to fall outside Article 8, but this should not be assumed.
3. Where there is a long gap between any action being taken and the complaint, in this case 12 months between Mr Garamukanwa’s arrest and Ms Maclean’s complaint, it may not be reasonable for an individual to expect that materials would remain private. Employers should therefore note the importance of putting employees on notice about allegations of misconduct against them at an early stage.
4. A failure to challenge an employer’s use of material during a disciplinary process makes it difficult for an individual to later object to reliance being placed upon it.
5. It will be difficult for an individual to argue that material is private and should not be relied upon when the employee has voluntarily provided the employer with other private communications.