European Court of Human Rights finds no breach of Article 8 by UK courts in relation to employee dismissed for content of personal emails and WhatsApp messages passed to the employer by the police

The applicant, George Garamukanwa, was employed by a NHS Trust from October 2007 as a clinical manager. In June 2012 a colleague, LM, with whom he had had a relationship, raised concerns with her manager about emails he had sent her and other employees about her alleged relationship with a junior member of staff. The manager warned Mr Garamukanwa that his behaviour was inappropriate.

Mr Garamukanwa was suspended in April 2013 when the police informed the Trust that they were investigating claims by LM that he had been stalking and harassing her and sending anonymous malicious emails to employees of the Trust.

In December 2013, following an internal investigation and disciplinary proceedings, the Trust dismissed Mr Garamukanwa for gross misconduct. It relied on photographs stored on his iPhone, passed to it by the police, linking him to certain anonymous emails, as well as personal emails and WhatsApp messages exchanged by Mr Garamukanwa and other employees, including LM. Mr Garamukanwa had voluntarily provided some of the communications at one of the disciplinary hearings.

Mr Garamukanwa challenged his dismissal in court, arguing that the Trust had relied on private material. His claim was ultimately dismissed in 2016 on appeal. The courts found that he could have had no reasonable expectation that the evidence relied on by the Trust would remain private.

Mr Garamukanwa applied to the ECtHR, arguing that the UK courts’ decisions upholding his dismissal constituted a breach of his right to privacy under Article 8 (right to respect for private and family life, the home and correspondence).

The ECtHR noted that according to its own case law, communications from business premises can be covered by the notions of “private life” and “correspondence” under Article 8 and an individual’s reasonable expectation of privacy was a significant though not necessarily conclusive factor in determining whether Article 8 was applicable. Therefore, Article 8 could apply in a case such as this where an employer had relied on material or communications of a private nature to justify a dismissal.

However, in this case the ECtHR considered that Mr Garamukanwa could not reasonably have expected that any of the material or communications in question would remain private.

By the time the police had arrested and interviewed him in April 2013 over the harassment allegations, Mr Garamukanwa had been aware for almost a year that the Trust considered his behaviour inappropriate. He could not, therefore, have reasonably expected that any material or communications linked to the harassment allegations after June 2012 would remain private.

Further, Mr Garamukanwa had not sought to challenge the use of the iPhone material or any private communications during the disciplinary hearing. In fact, he had voluntarily provided the panel with further private communications.

The UK courts had considered Mr Garamukanwa’s Article 8 arguments and had come to the same conclusion. Mr Garamukanwa had not submitted any compelling reasons for the ECtHR to find otherwise and therefore it rejected his complaint as inadmissible. (Garamukanwa v UK (Application no 70573/17) [2019] ECHR 445 (6 June 2019) — to read the judgment in full, click here).