The European Court of Human Rights (ECtHR) has ruled that an employee's right to privacy under Article 8 of the European Convention of Human Rights (ECHR) was not breached when his employer relied on material found on his phone during a police investigation to dismiss him following allegations of harassment by a colleague.
Article 8 of the ECHR gives individuals a right to respect for his private and family life, home and correspondence. A public authority cannot interfere with the exercise of this right unless it accords with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The Court of Appeal in X v Y, 2014 clarified that what is "private life" depends on all the circumstances of the particular case including whether the conduct is in private premises, and, if not, whether it happens in circumstances in which there is a reasonable expectation of privacy for conduct of that kind.
More recently, the ECtHR in Barbulescu v Romania, 2017 confirmed that communications from business premises as well as from home may be covered by the notions of "private life" and "correspondence" under Article 8 ECHR. It also held that whilst a reasonable expectation of privacy is significant, it is not necessarily the conclusive factor.
The Claimant was employed by the NHS. His personal relationship with a colleague, LM ended in May 2012. In June 2012, he sent an email to another colleague expressing concern that LM was allegedly in a personal relationship with DS, a junior member of staff. He also sent an email to LM and DS directly raising the same issue prompting LM to complain to her manager. The manager spoke to the Claimant and explained that the email had been inappropriate. By this time, the same manager had received an anonymous letter alleging that LM and DS had been behaving inappropriately at work.
From June 2012 to April 2013, LM and DS were subjected to a campaign of stalking and harassment. Malicious emails making personal allegations against LM and DS were sent to employees of the Trust and to LM personally through bogus anonymous accounts. In April 2013, LM filed a complaint to the police that the Claimant was stalking and harassing her. The police found photographs on the Claimant's phone of LM's home address and details of the email addresses from which the anonymous emails had been sent, which they passed to the Trust. Relying on those photographs in their own investigation, the Trust concluded that there was sufficient evidence to link the Claimant to at least some of the anonymous emails and started disciplinary proceedings. At the disciplinary hearing, the Claimant voluntarily provided further evidence including personal email and Whatsapp messages between him and LM. The Trust decided to dismiss the Claimant for gross misconduct based on, amongst other things, the photographs it had received from the police and the Claimant's own evidence.
The Employment Tribunal and Employment Appeal Tribunal dismissed the Claimant's claims. In respect of his claim for breach of Article 8 ECHR, the EAT held that the Tribunal had been entitled to conclude that the Claimant had no reasonable expectation of privacy in relation to the material relied on by the Trust, because:
● He had not raised any objection to the use or reliance of that material during the disciplinary proceedings,
● Once he was aware that LM had made a complaint against him in June 2012, he must have expected that she would complain of feeling harassed by his any subsequent correspondence with her, and he could have had no expectation of controlling when and where she complained or what she did with the emails sent to her, and
● The content of the emails sent to LM's private email address related to personal and workplace issues.
In any case, even if Article 8 ECHR was engaged, the Trust's interference with the Claimant's rights was justified by its need to protect the health and welfare of its other employees. The Claimant appealed to the ECtHR.
The ECtHR agreed with the Tribunal and EAT that on the facts of this case, the Claimant had no reasonable expectation of privacy based on the first and second bullet points of the EAT's analysis above.
The decision is a useful reminder that Article 8 ECHR may be engaged even where the material relates to work emails or touches upon work (as well as personal) issues. The question of whether the employee had a reasonable expectation of privacy will be key as this case shows the analysis around expectations of privacy will be highly fact specific and not easy for employers to assess. Notice to the employee of relevant work related issues will be relevant, and employers should conduct their own analysis of the privacy implications before relying on personal communications in disciplinary proceedings.
Garamukanwa v UK, European Court of Human Rights