UK: Material found on employee’s mobile phone could be used in disciplinary process

Material found on employee’s mobile phone could be relied on by employer in disciplinary proceedings and did not breach the right to privacy under Article 8 of the European Convention on Human Rights

The right to privacy is a fundamental human right and, in light of the fact that many employees spend a significant amount of their time at work, a reasonable level of privacy can generally be expected at work.

However, as was seen in the recent case of Garamukanwa v United Kingdom (70573/17) [2019] 6 WLUK 109, there are circumstances when employees can have no expectation of privacy and when an employer’s interference with the right to privacy can be justified by the employer’s need to protect the health and welfare of other employees. In this case, the European Court of Human Rights considered whether an employee’s right to privacy under Article 8 of the European Convention on Human Rights (ECHR) was breached when, for the purposes of disciplinary proceedings, the employer relied on material found on the employee’s mobile phone.

Facts
Mr Garamukanwa was employed by Solent NHS Trust (the Employer) and was involved in a personal relationship with a colleague, Ms Maclean, which ended in May 2012. Between June 2012 and April 2013, Ms Maclean and another member of staff, Ms Smith, were subjected to a campaign of stalking and harassment by Mr Garamukanwa. A number of anonymous, malicious emails and messages were sent to employees of the Employer and to Ms Maclean and Ms Smith personally, making various allegations against them. Property belonging to both Ms Maclean and Ms Smith was also damaged.

Following an email from Mr Garamukanwa to both Ms Maclean and Ms Smith raising the issue of their relationship, Ms Maclean complained to her manager, Mr Brown. Mr Brown informed Mr Garamukanwa that his email was inappropriate. However, Mr Garamukanwa continued his campaign against Ms Maclean and Ms Smith and eventually Ms Maclean raised the issue with the police. Following the involvement of the police, the Employer suspended Mr Garamukanwa and started its own internal investigation into his conduct.

During the police investigation, photographs were found of Ms Maclean’s home address on Mr Garamukanwa’s mobile phone, and a sheet of paper containing details of the email accounts from which the anonymous messages had been sent. The police passed this on to the Employer, who decided that the material which had been found by the police was sufficient to link Mr Garamukanwa to at least some of the anonymous emails and it decided to commence disciplinary proceedings against him. At the disciplinary hearing, Mr Garamukanwa voluntarily provided the panel with further evidence on his behalf, including personal email and WhatsApp correspondence between him and Ms Maclean. Relying on the material it had received from the police, the Employer eventually dismissed Mr Garamukanwa on the grounds of gross misconduct.

Mr Garamukanwa brought unfair dismissal proceedings and also argued that the Employer had breached Article 8 of the ECHR (the right to respect for private and family life, home and correspondence) because it had used matters which related to his private life as evidence to justify his dismissal. Mr Garamukanwa argued that he had reasonably expected that this material would remain private. He argued that the Employer had failed to draw a distinction between public material (such as the anonymous emails sent to multiple employees of the Employer) and private material (such as the personal messages and emails sent to Ms Maclean).

Mr Garamukanwa was unsuccessful in both the Employment Tribunal and the Employment Appeal Tribunal on the basis that he had no reasonable expectation of privacy in relation to the material which had been found by the police and passed on to the Employer. In particular, when deciding the matter it was held that:

• After Ms Maclean complained to Mr Brown about the first email sent by Mr Garamukanwa, he was effectively notified that his conduct was inappropriate and he must have expected that his ongoing campaign of harassment was likely to lead to further complaints against him and that the emails he was sending would be referred to.
• The content of the emails sent to Ms Maclean’s personal email address was not purely personal but also raised various work issues.
• Mr Garamukanwa had not objected to the use of the material at any stage during the investigation or disciplinary proceedings carried out by the Employer.

© Miller Rosenfalck LLP, July 2019

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.