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          Can using material found on an employee's phone in criminal proceedings be used as evidence for an internal disciplinary process?

          In Garamukanwa v United Kingdom (70573/17) [2019] 6 WLUK 109, the European Court of Human Rights considered whether a right to privacy under Article 8 of the European Convention on Human Rights ("ECHR") was breached when the employer relied on material passed to it and found on the employee's phone during a police investigation into allegations of harassment against the employee by a colleague.

          Date: 28/06/2019

          Background

          Mr Garamukanwa was employed by Solent Trust ("the Trust") as a clinical care manager from 16 October 2007. During the early days of employment, Mr Garamukanwa became involved in an intimate personal relationship with a fellow colleague, Ms Maclean. When the relationship ended in or around May 2012 Mr Garamukanwa raised concerns to the Trust that Ms Maclean was involved in a personal relationship with a junior collegue, Ms Smith, alleging it was not in the interests of patients on the ward.

          Mr Garamukanwa also contacted both Ms Maclean and Ms Smith to raise concerns over their alleged relationship, stating if they did not disclose their relationship to the employer, he would do it himself, leading Ms Maclean to make a complaint to her manager. Between June 2012 and April 2013 Mr Garamukanwa subjected Ms Maclean and Ms Smith to a campaign of stalking and harassment, including anonymous malicious emails regarding the two being sent to colleagues, fake Facebook accounts being set up and personal property of Ms Maclean and Ms Smith being damaged.

          Ms Maclean reported the matter to the police and Mr Garamukanwa was subsequently suspended as a result of the criminal investigation against him. The police investigation into Mr Garamukanwa's conduct uncovered details of the anonymous email addresses where the malicious emails were sent from and also pictures of Ms Maclean's home address. This information was passed to the Trust from the police.

          After a thorough investigation process, the Trust decided there was a disciplinary case to answer and invited Mr Garamukanwa to a disciplinary hearing. Mr Garamukanwa could provide no reasonable explanation for the photographs and anonymous emails found on his phone and he was subsequently summarily dismissed for gross misconduct. Mr Garamukanwa's appeal was also dismissed.

          Mr Garamukanwa lodged a claim for unfair dismissal, race discrimination and wrongful dismissal at the Employment Tribunal.

           

          Employment Tribunal

          All of Mr Garamukanwa's claims failed at the Employment Tribunal. The Tribunal were satisfied that the conduct of the person who sent the anonymous email had an impact on work related matters and the employment relationship between Mr Garamukanwa (if he was responsible) and the Trust. Mr Garamukanwa was in a senior position at the Trust and was subject to professional standards to behave in an appropriate manner.

          Mr Garamukanwa sought to raise a claim under Article 8 European Convention on Human Rights and Fundamental Freedoms (right to private life). Mr Garamukanwa argued that examining matters on his phone that related purely or essentially to his private life, and using such evidence to justify his dismissal, was a breach of his Human Rights.

          The Tribunal found that the relevant provisions of the Human Rights Act 1998 and Article 8 ECHR were not engaged in this case as this case concerned work related matters and in particular the employment relationship between Mr Garamukanwa and the Trust. Mr Garamukanwa appealed to the Employment Appeal Tribunal ("EAT") arguing the Trust had relied upon "private material" in reaching a decision to dismiss him.

           

          EAT

          The EAT dismissed Mr Garamukanwa's appeal. In doing so it found that the ET had been entitled to reach the conclusion that Mr Garamukanwa did not have a reasonable expectation to privacy in the "private" material (i.e. emails and photos on his iPhone) that he had sent Ms Maclean. Mr Garamukanwa was aware of the complaint made against him and that it was likely any further correspondence would be directed by Ms Maclean to the Trust. Furthermore, Mr Garamukanwa had voluntarily submitted additional information to be considered and did not rase any objection during the internal proceedings that the material relied upon breached his Article 8 ECHR right; this argument was only advanced for the first time at the ET hearing in submissions.

          Mr Garamukanwa applied for permission to appeal to the Court of Appeal.

           

          Court of Appeal

          The Court of Appeal refused permission to appeal and Mr Garamukanwa subsequently brought proceedings in the European Court of Human Rights.

           

          European Court of Human Rights

          The European Court of Human Rights dismissed Mr Garamukanwa's appeal.

          It found that Mr Garamukanwa had been on notice for at least a year of harassment allegations raised against him by the time he was arrested. As such, he could not have had a reasonable expectation to privacy in the material he sent once he was notified an allegation had been made against him. In addition, Mr Garamukwana had voluntarily provided additional material of an intimate nature and did not challenged the use of such material during the course of the disciplinary hearing.

           

          Comment

          This case highlights the importance of employers notifying an employee from an early stage of allegations of misconduct made against them.

          Related people

          Joanne Frew

          • Partner // Head of Employment (Manchester)