186: No breach of right to privacy when material from phone is used during disciplinary hearing

In Garamukanwa v United Kingdom, the European Court of Human Rights has ruled that there was no breach of Article 8 where an employer used material during a disciplinary hearing which had been found on an employee’s phone by the police during their investigations into allegations of harassment against him by a colleague.

Article 8 of the European Convention on Human Rights (ECHR) protects everyone’s right to respect for their private and family life, home and correspondence, except in certain specified circumstances including the interests of public safety, prevention of crime, protection of health or morals, or the protection of the rights and freedom of others.

Mr Garamukanwa, a clinical manager for Solent NHS Trust (the Trust), was involved in a relationship with a colleague, Ms Maclean. When this ended, he subjected her and a junior female colleague to a campaign of stalking and harassment because he suspected them of having a relationship and behaving inappropriately at work. This included sending malicious emails to other colleagues and management making allegations against Ms Maclean, some of which were sent anonymously, and setting up a fake Facebook account. Ms Maclean initially complained to her manager, who stressed to Mr Garamukanwa that his emails were inappropriate, but the concerns about his conduct continued for over a year. Eventually, Ms Maclean complained to the police. Although Mr Garamukanwa was arrested, he was not charged. Material found by the police during their investigations was handed to the Trust, which used the information in its own internal investigation and subsequent disciplinary proceedings. This included photographs of Ms Maclean’s address on Mr Garamukanwa’s phone and details of the email accounts from which the anonymous messages had been sent. Mr Garamukanwa also provided further evidence at his disciplinary hearing, including personal email and Whatsapp messages. He was subsequently dismissed for gross misconduct.

Mr Garamukanwa then brought various claims against the Trust, including a claim that it had breached his right to privacy under Article 8 of the ECHR by examining matters relating to his private life and using that as evidence to justify his dismissal. The Employment Tribunal and the Employment Appeal Tribunal (EAT) rejected his claims on the basis that he had no reasonable expectation of privacy in the circumstances of his case. Having been refused permission to appeal to the Court of Appeal, Mr Garamukanwa brought proceedings in the European Court of Human Rights.

The European Court of Human Rights also dismissed his claim. It agreed that some of the emails and photographs fell within the categories of ‘private life’ and ‘correspondence’ protected by Article 8. However, Mr Garamukanwa could have no reasonable expectation of privacy because by the time of his arrest, he had been aware for a year that Ms Maclean had raised concerns about his conduct with the Trust. He could not, therefore, have reasonably expected that any materials linked to those allegations would remain private. In addition, he had not challenged the use of the material from his phone or other private communications during his disciplinary hearing and had even voluntarily provided the panel with further private communications.

The European Court of Human Rights confirmed that workplace communications are capable of falling within the protection under Article 8 for private life and correspondence. However, the employee would also usually need to show that they had a reasonable expectation of privacy, which will depend on the precise facts and circumstances. Although in this case, the employee could not reasonably have expected the relevant communications to remain private, Article 8 could in principle, therefore, apply where an employer has relied on material or communications of a private nature to justify a dismissal.