Garamukanwa v United Kingdom
17 September 2019
No breach of right to privacy where employer relied on material found on employee's phone in disciplinary process
The European Court of Human Rights ("ECHR") considered a complaint by an employee that the decision of his employer to dismiss him from his employment using material found on his mobile phone breached his right to privacy under Article 8 of the European Convention of Human Rights ("Convention"). The ECHR rejected the complaint finding that in the circumstances the employee had no reasonable expectation of privacy despite the fact communications were sent from his private mobile phone and email account to his work colleague.
Mr Garamukanwa was employed by an NHS trust. He had been involved in a personal relationship with a colleague, L, which ended in May 2012. Shortly after, Mr Garamukanwa suspected L had formed a new relationship with another colleague, D. He emailed L to express concern of the alleged relationship and on 25 June 2012, she complained to her manager. The manager warned Mr Garamukanwa, explaining that he felt the email was inappropriate.
Between June 2012 to April 2013, L and D received a number of malicious anonymous emails. Eventually, L complained to the police and Mr Garamukanwa was suspended. He was arrested, but no charges were brought. The police provided the employer with evidence from their investigations including photographs of L's home on his private phone and details of the anonymous email addresses. Mr Garamukanwa was subsequently dismissed for gross misconduct. The letter confirming the outcome of the disciplinary hearing referred to the private phone material and emails and messages that he had sent to L.
Mr Garamukanwa brought tribunal proceedings alleging unfair dismissal. His counsel argued that his employer had acted in breach of Article 8 of the Convention by examining and relying on material that had been sent directly to L from his private phone and email account about his private feelings and their relationship, including photographs that the police had found on his phone, to justify his dismissal. The tribunal found that the dismissal was fair and that Article 8 was not engaged. The decision was upheld by the Employment Appeal Tribunal.
The reasoning for the non-engagement of Article 8 was the fact that after L complained to her manager about the first email sent by Mr Garamukanwa, he had been effectively notified that his conduct was inappropriate. Mr Garamukanwa therefore had no reasonable expectation of privacy in relation to any material which was sent after he had been told his conduct was inappropriate as there must have been an expectation that she would complain of feeling harassed by his ongoing correspondence with her. Furthermore, he could have had no expectation of controlling when and where she complained or what she did with the emails. Aside from this, the content of the emails sent to L's private email address were not purely personal but strayed beyond Mr Garamukanwa's private feelings towards her, touching on workplace issues as well. It was also considered significant that Mr Garamukanwa had not objected to the use of the material at any stage during the investigation or disciplinary process and was first raised in argument in the Employment Tribunal by his counsel. The Court of Appeal refused permission to appeal so Mr Garamukanwa raised a complaint in the ECHR.
Mr Garamukanwa complained to the ECHR that under Article 8, the trust's decision to dismiss him was in reliance on private material. He argued that the domestic courts' decisions upholding his dismissal constituted a breach of his right to privacy under Article 8 as his employer had no right to rely on the evidence provided to them.
Mr Garamukanwa's complaint to the ECHR referred to private photographs stored on his phone as well as personal emails and messages sent to employees of the trust. The former would fall within the ambit of "private life", whereas the latter would fall within the ambit of "correspondence". The ECHR found that the sending and receiving of the communications were covered by the notion of "correspondence" in Article 8.
The ECHR therefore went on to examine whether Mr Garamukanwa had a reasonable expectation of privacy in relation to the material relied upon by the disciplinary panel to dismiss him. The ECHR accepted that in some circumstances, reliance by an employer on communications of a private nature may engage Article 8. However, in this case, Mr Garamukanwa had been aware for a substantial period of time (almost a year) that L had raised complaints about his communications with her and that his employer considered his behaviour to be inappropriate. Further, he did not seek to challenge the use of the phone material during the disciplinary hearing and had voluntarily provided further private communications to his employer. Accordingly, the ECHR considered there was no reasonable expectation of privacy over the material relied upon by the trust and dismissed the complaint.
What does this mean for employers?
It is clear from the reasoning of the judges that this was a fact sensitive case and employers should remain cautious about relying on what could amount to private material in any disciplinary process. It should not be assumed that material which is mixed between the professional and the personal, or sent from a work email account, is not covered by Article 8. While material which is passed to an employer by the police may well fall outside the scope of Article 8, this should not be assumed in all cases.
However, as the fact that L made an immediate complaint to her manager (who made Mr Garamukanwa aware of the unacceptable nature of the conduct) was key to the finding, he could not have a reasonable expectation over his further communications with L. Therefore, where a complaint of harassment is made, notifying the employee in question of a complaint about their inappropriate communications will assist in negating any reasonable expectation of privacy the employee may have over any further communications which come to light and which are used to justify their dismissal.