Can You Use Private Photos and Personal Emails to Dismiss an Employee?

Author
Gareth Edwards
Partner - Employment Law | VWV
22nd July 2019
Member roleInitiative member

Employers should be careful when using what could amount to private material during a disciplinary process.

In particular:

  • Don't assume that mixed professional and personal material which is sent from a work email address is not covered by Article 8 of the European Convention of Human Rights, which protects one's right to privacy.
  • 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 right to privacy, but this should not be assumed in all cases.

Mr Garamukanwa who was employed by the NHS as a Clinical Manager had ended a relationship with his partner, who was also a work colleague. He later stalked and harassed his former partner and another work colleague, with some emails sent to colleagues making allegations about them, some of which were sent anonymously.

This was then 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. Mr Garamukanwa was not charged.

Mr Garamukanwa's employer then conducted a disciplinary procedure. The information which was located by the police was passed to his employer, who decided to terminate his employment.

Mr Garamukanwa brought claims for unfair dismissal, claiming that his employer had breached his right to privacy under Article 8 of the European Convention of Human Rights. These were rejected by the Employment Tribunal on the basis that Mr Garamukanwa couldn’t have had a reasonable expectation of privacy based on the facts of the case.

Following a review, and despite the materials covering both personal and workplace issues, the European Court stated that the emails didn’t automatically fall outside of Article 8 because the material they contained were a mix of personal and professional. The European Court rejected Mr Garamukanwa's overall argument on the basis that he could have no reasonable expectation of privacy because:

  • he had been aware for nearly a year that his former partner had raised concerns with the employer 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 his employer with other private communications between him and his former partner.

His application was therefore dismissed.

For more information, please contact Gareth Edwards in our Employment Law team on 0117 314 5220.

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