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Garamukanwa v UK - Right to privacy:

investigation evidence

European Court of Human Rights – June 2019

The European Court of Human Rights (ECHR) has ruled that an organisation relying on evidence provided by the police during a disciplinary procedure did not breach an employee’s right to privacy.

Article 8 of the European Convention of Human Rights provides that everyone has the right to respect for their private and family life, their home and their correspondence. It goes on to outline that there shall be no inference by a public authority with the exercise of this right except as is necessary in the interests of a number of specific areas, including the prevention of disorder or crime or for protection of health or morals. 

The Supreme Court has previously outlined that a key factor to consider in cases concerning a breach of this right is if the employee had a ‘reasonable expectation’ of privacy. In the case of Barbulescu v Romania, it was confirmed that this expectation is significant but is not necessarily a conclusive factor and organisations could monitor employees without breaching Article 8 if steps are taken to remove this expectation.

Facts


In this case, the employee had recently been involved in a personal relationship with his colleague, Ms Maclean. Not long after this ended, the employee emailed Ms Maclean and a junior staff member, Ms Smith, voicing concern that they had entered into a separate personal relationship. Ms Maclean complained about this to her manager, who later made the employee aware that this had been inappropriate.

Over the course of the next ten months, Ms Maclean and Ms Smith suffered an ongoing campaign where they were stalked and harassed. This included insulting emails about their relationship being sent to them and to their colleagues. The police were eventually informed and commenced an investigation. Although no charges were brought against the employee, they found evidence at his home that held details of some of the email accounts that had been used in the campaign. The police passed this onto the organisation, who were also conducting an investigation into the employee’s conduct.

Following a review of this material, the organisation decided there were grounds to proceed with a disciplinary procedure. A disciplinary hearing was held, during which the employee provided some additional evidence that included emails and WhatsApp messages exchanged directly between him and Ms Maclean. The organisation ultimately decided to dismiss the employee for gross misconduct, relying upon the material that had been provided to them by the police. The employee appealed unsuccessfully against this decision.

Employment tribunal


The employee brought numerous claims to the employment tribunal (ET), including unfair dismissal. He argued that the decision to dismiss him had breached Article 8 as it had been made through the use of evidence that related to his private life.  

The ET dismissed his claim, finding that Article 8 was not engaged in this situation. In forming their decision, the tribunal outlined that the emails also concerned work-related topics and had been distributed to directly to work email addresses.  

Employment Appeal Tribunal


The employee appealed against this decision to the Employment Appeal Tribunal (EAT). His main argument was that the organisation had relied on private evidence to dismiss him and that he’d had a reasonable expectation that this evidence would remain private.  

His appeal was dismissed. In forming their decision, the EAT held there was no reasonable expectation of privacy as:

the employee had not fought against the use of the material at any point in the disciplinary procedure
the employee should have expected Ms Maclean would feel harassed by his subsequent emails following his initial conversation with her manager and he had not have expected that she wouldn’t share these emails as further evidence of his misconduct
the email content also made reference to workplace topics so were not just personal to the employee.
The EAT concluded that, even if Article 8 was engaged, the decision to dismiss the employee was still justified for the need to protect the welfare, health and safety of the organisation’s employees.

European Court of Human Rights


The employee took his case to the ECHR, again arguing that the use of the private material to dismiss him, and all subsequent decisions to uphold this, breached Article 8. His appeal was dismissed.  

In forming their decision, the Court applied Barbulescu. They outlined that although an email which referenced both professional and private matters could still have potentially breached Article 8, there was no reasonable expectation of privacy in respect of the material provided by the police.

This was because, by the time of the police investigation, the employee had previously been informed about the inappropriate nature of sending personal emails regarding Ms Maclean’s relationship. He could not therefore have reasonably expected that any additional evidence which outlined that this behaviour had continued would remain private.