May 31, 2016

Right to Privacy in Disciplinary Proceedings

In Garamukanwa v Solent NHS Trust UKEAT/0245/15, the Employment Appeal Tribunal (EAT) considered whether an employee had a reasonable expectation of privacy in respect of material on his mobile phone during disciplinary proceedings.

Mr Garamukanwa was employed as a clinical manager by the Trust. When his personal relationship with a co-worker, Ms McLean, ended, he suspected she had formed a new personal relationship with another co-worker, Ms Smith. He sent them both emails threatening to inform their manager of this. Subsequently, a number of anonymous and malicious emails were sent to them, as well as to a number of other co-workers. Ms McLean reported the matter to the police who arrested Mr Garamukanwa but released him without charge. As part of its internal investigation, the Trust received from the police material from Mr Garamukanwa’s mobile phone linking him to the anonymous emails. Mr Garamukanwa was summarily dismissed for gross misconduct, the Trust relying primarily on the material provided by the police. Mr Garamukanwa argued that in using this material in the disciplinary proceedings, the Trust had breached his right to private life protected by Article 8 of the European Convention on Human Rights.

The EAT found that Article 8 was not engaged because the content of the private material and the circumstances in which it came to be considered involved work related matters. In particular, the disturbing emails had been sent to Trust email addresses, they had caused distress to Trust employees and called into question the Trust’s working relationship with Mr Garamukanwa or the individual responsible for sending them.

Despite this finding from the EAT, employers should tread carefully when seeking to rely on information provided by a third party (even the police) to dismiss an employee.

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