Can You Use Private Photos and Personal Emails to Dismiss an Employee?
Employers should be careful when using what could amount to private material during a disciplinary process.
In particular:
- It should not be assumed that material which is mixed between the professional and the personal, or which is sent from a work email account, is not covered by Article 8 of the European Convention of Human Rights, which protects a person's right to a private life and correspondence.
- Employers should consider whether employees could have a reasonable expectation of privacy in the circumstances.
- Where material is passed to an employer by the police it would seem that the balance tips towards it being outside the scope of Article 8 but this should not be assumed in all cases.
In a recent case, the European Court of Human Rights (ECHR) declared that an employee could have no expectation of privacy in relation to communications and photographs which resulted in his dismissal.
Garamukanwa v United Kingdom
Mr Garamukanwa was employed as a Clinical Manager for an NHS trust. He had been involved in a relationship with a colleague, which ended in May 2012. He then subjected her and another colleague to a campaign of stalking and harassment, part of which involved sending emails to other colleagues making various allegations against his former partner, some of which were sent anonymously.
This was reported to the police, who arrested Mr Garamukanwa and found photographs on his personal phone and details of email accounts which linked him to the conduct that had been the subject of the complaint. The police did not charge Mr Garamukanwa.
The trust then conducted a disciplinary procedure which ended in his dismissal. The information located by the police had been passed to the trust and was used in their decision to terminate his employment.
Mr Garamukanwa brought various claims against the trust, including for unfair dismissal, all of which were rejected by the Employment Tribunal. He also argued that the trust had breached his right to privacy under Article 8 of the European Convention of Human Rights. This argument was rejected by the tribunal on the basis that Mr Garamukanwa could have had no reasonable expectation based on the facts of the case.
Mr Garamukanwa applied to the ECHR for a review of this decision. His complaint related to private photographs on his phone and personal emails he had sent - the former would fall with the 'private life' element of Article 8 and the latter within the 'correspondence' element. Both were therefore capable of being protected by Article 8.
Some of the emails covered both personal and workplace issues. The ECHR stated that these emails did not automatically fall outside of Article 8 just because the material they contained was a mix of the personal and the professional. However, the ECHR rejected Mr Garamukanwa's overall argument on the basis that he could have no reasonable expectation of privacy because:
- By the time of his arrest, he had been aware for nearly a year that his former partner had raised concerns with the trust about his conduct.
- He could not reasonably have expected that any materials linked to the allegations would remain private.
- He had not sought to challenge the use of this material during the internal disciplinary proceedings.
- He had voluntarily provided the trust with other private communications between him and his former partner.
His application was therefore dismissed as inadmissible.