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Messy iMessages and Privacy Problems

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BY Scott O'Connor
Employment Law & HR

In a recent case before the European Court of Human Rights (ECHR) information on an employee’s phone was used to justify his dismissal.

The Employee complained saying that his right to privacy under Article 8 of the European Convention on Human Rights (ECHR) had been breached by his employer using material obtained from his mobile phone during a police investigation into allegations of harassment against him by a colleague.

Mr Garamukanwa had been involved in a personal relationship with a colleague, Ms Maclean until May 2012.  After the relationship ended it was alleged he stalked and harassed her, a complaint was made to the police who alerted his employer. No criminal charges were ever brought against Mr Garamukanwa. However, during the police investigation, photographs were obtained from the phone showing Ms Maclean’s home address and details of email accounts used to send anonymous emails to Ms Maclean and others within the workplace.

The police, acting on legal advice, shared the information with his employer who were carrying out their own investigation. Based on the evidence supplied, his employer dismissed Mr Garamukanwa for gross misconduct.

Mr Garamukanwa subsequently raised a claim for unfair dismissal. He argued that his employer had breached his human rights by using evidence relating to his private life to justify his dismissal. The Tribunal rejected this and noted that emails had been sent to work email addresses which dealt with work-related matters.

On appeal, the Employment Appeal Tribunal (EAT) rejected his claim on the following grounds:

  • It was significant that he had not objected to the use of this material at any stage of the disciplinary process;

  • After Ms Maclean complained about the first email sent by Mr Garamukanwa, he must have expected that she would complain of feeling harassed by his ongoing conduct; and

  • The content of the emails sent to Ms Maclean’s personal email address related to workplace matters and was not purely personal.

The EAT also concluded that if Article 8 had been breached, his employer had been justified in that breach to protect the health and welfare of their employees.

Mr Garamukanwa then brought proceedings in the ECHR to argue that the use of private material in justifying dismissal constituted a breach of Article 8.

The Court considered previous case law guidance (our analysis here: https://www.lawatwork.co.uk/news-views/snooping-rights-employers-don%E2%80%99t-believe-everything-you-read-online%E2%80%A6-28-01-2016). This stated that communications sent from business premises, as well as from the home, potentially fall within the scope of “private life” and “correspondence” within the meaning of the law. Mr Garamukanwa’s claim related to both private photographs on his phone and personal emails and messages sent to other employees. The former would be regarded as “private life” and the latter regarded as “correspondence”. The ECHR then had to decide if Mr Garamukanwa had a reasonable expectation of privacy in relation to the material relied upon by the employer.

In the circumstances, the ECHR decided that Mr Garamukanwa did not have a reasonable expectation of privacy as he had been aware of Ms Maclean’s complaint for almost a year. This was sufficient prior notice that allegations of harassment had been made against him and he could not reasonably expect that any materials relating to this matter would remain private.

Comment

This case highlights the caution that employers must use when obtaining material from mobile phones or computers for disciplinary purposes, even if these are company property. Many employees will socialise with some colleagues or at least be in contact with them through texts, WhatsApp and other social media forms. This case shows that in certain circumstances, when this interaction crosses the line, employers can take action. The Court did highlight the very narrow confines in which this is acceptable though. Data privacy is particularly complex when relating to employee conduct. If you have any such issues in the workplace, contact your dedicated Employment Solicitor who will be able to help you navigate any tricky scenarios.

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