Employers may be able to rely on an employee's private phone communications to justify discipline or dismissal in some cases, as employees will not always have a reasonable expectation of privacy. Whether there is such an expectation will be fact-sensitive with relevant factors including whether the conduct concerns work-related matters, whether the employee is responsible for bringing private matters into a work situation, and whether the employee has acted in a way to indicate that they regard the material as private.
In Garamukanwa v Solent NHS Trust the employer was entitled to rely on emails and photographs found on an employee's mobile phone and supplied by the police following a criminal investigation to justify dismissing him. The employee was a senior manager who had sent unpleasant emails to a work colleague and her friend after his relationship with the colleague ended; this was followed by further unpleasant anonymous emails to them and other colleagues. The manager had turned a personal relationship into a workplace issue by his conduct and had not objected to the use of the evidence in the internal disciplinary process; he therefore had no reasonable expectation of privacy.
The ruling does not address whether the police were entitled to pass the information to the employer, but suggests that an employer can rely on such evidence where the police have given permission. Note that leave to appeal has been sought.