16 July 2019

No reasonable expectation of privacy over phone data relied upon to dismiss

Garamukanwa v UK (70573/17)

Why care?

An employee's right to privacy was not breached when he was dismissed for gross misconduct based upon evidence found on his mobile phone and handed to his employer by the police.

Article 8 of the European Convention on Human Rights gives everyone the right to respect for their private and family life, their home and their correspondence. No public authority shall interfere with this right other than in accordance with the law, and as necessary in a democratic society in the interests of national security, public safety, national economic well-being, for the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.

Under the UK's Human Rights Act 1998, public authorities must not act in a way which is incompatible with the Convention, and courts and tribunals must as far as possible interpret legislation in a way which is compatible with it.

The case

Mr Garamukanwa was employed by Solent NHS Trust. He was in a relationship with a staff nurse (LM), which ended in May 2012. Mr Garamukanwa suspected that after the relationship ended she had formed a relationship with DS, a colleague.

LM complained to her manager, Mr Brown, about emails she and her colleagues had received from Mr Garamukanwa and Mr Brown (who had also received an anonymous letter) warned Mr Garamukanwa about the inappropriateness of his actions.

From June 2012 to April 2013, LM and DS were subjected to a campaign of harassment which included a fake Facebook account being set up in DS' name and a number of anonymous emails to colleagues and managers about LM and DS. The emails included details which revealed that the sender was most likely following LM and DS during their non-working time.

Eventually, LM complained to the police, who told the Trust, which suspended Mr Garamukanwa in April 2013 pending an investigation. Although he was arrested, no formal criminal charges were ever brought but the police provided the Trust's investigator with the evidence they had obtained, including a copy of LM's witness statement and photos found on Mr Garamukanwa s phone of details of the anonymous email addresses, and a photo of LM's home.

Mr Garamukanwa was subsequently dismissed for gross misconduct, principally in reliance on the photographs on the iPhone. His appeal was not upheld and he lost his employment tribunal claim.

He appealed to the EAT, arguing that the Trust had no right to look at the his private emails and the Trust should have drawn a distinction between the evidence provided by the police which was public material (eg the email sent to staff and managers) and the private material (such as emails he had sent to LM and the photographs on his iPhone).

The EAT held that the tribunal was entitled to hold that Article 8 was not engaged, because Mr Garamukanwa had no reasonable expectation of privacy in respect of the private material. The disciplinary investigation was into matters that had been brought into the workplace by Mr Garamukanwa, notwithstanding that they had begun as a personal relationship with a colleague. The emails had been sent to work colleagues, to whom the Trust also owed a duty of care.

Mr Garamukanwa could not reasonably have any expectation of privacy concerning his emails to LM once she had reported her distress at receiving them to the manager, who had warned Mr Garamukanwa to stop.

European Court of Human Rights decision

Mr Garamukanwa then brought a case against the UK in the European Court of Human Rights, arguing 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 of the ECHR.

The European Court of Human Rights dismissed his claim.

Sending and receiving communications is covered by the reference to "correspondence" in Article 8. Communications from business premises, as well as from the home, are potentially within the scope of "private life" and "correspondence" within the meaning of Article 8. In ascertaining whether the notions of "private life" and "correspondence" are applicable, a reasonable expectation of privacy is a significant, though not necessarily, conclusive factor.

Relying on a range of evidence including the iPhone material and private communication between Mr Garamukanwa and other employees, the disciplinary panel had accepted an internal investigation's conclusion that Mr Garamukanwa had sent at least two emails of a malicious nature to employees of the Trust. Some of the evidence was handed over by the police, and some by Mr Garamukanwa himself. Some of the emails had come from his work email address and concerned workplace issues.

Mr Garamukanwa had no reasonable expectation of privacy over this material, because he had been aware for almost a year before his arrest that LM had reported concerns about his behaviour to the Trust.

The court noted that Mr Garamukanwa had not challenged the use of the iPhone material 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.

What to take away?

It seems that the tribunals are unwilling to engage Article 8 where personal correspondence or other items are brought into the employment sphere as a consequence of the individual's own conduct. Here, it may also have helped that the victim of the harassment immediately complained to her manager, who raised the issue with Mr Garamukanwa so he knew of the allegations, and that he no longer had a reasonable expectation of privacy around those emails and communications.

Finally, employers should take away from the case the importance of telling employees about allegations made against them as soon as possible, to remove any reasonable expectation of privacy. This case could be distinguished from another workplace privacy decision, Barbulescu v Romania, where an employer had breached an employee's Article 8 rights by accessing the employee’s private Yahoo! Messenger chat. In that case, 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.

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