The applicant was employed by the NHS Trust as a manager but as a result of alleged gross misconduct he was dismissed.   The case centred upon a personal relationship the applicant had with a colleague (known as L) that had ended in May 2012.  After the relationship ended, L started a relationship with another colleague, D.   The applicant had then emailed both L and D raising issues about their relationship Garamukanwa v United Kingdom [2019].

L made a complaint to a manager about the email that was received and the same manager then received an anonymous letter detailing accusations that L and D were acting inappropriately at work.  There were also anonymous emails sent to other employees within the Trust.

L and D outlined that they were subjected to stalking and harassment from June 2012 to April 2013, which led to a police investigation, but no charges were brought against the applicant. As a result of the investigation, there were photographs of L’s home on the applicant’s phone and there was a paper found detailing a number of email accounts that had sent some of the anonymous emails to the other employees.  This material was passed on to the Trust and used in the investigation subsequently leading to the applicant’s dismissal for gross misconduct.

The applicant had failed at the Industrial Tribunal and the Employment Appeals Tribunal in a claim for unfair dismissal as well as a breach of his private and family life by using the information that was found on the phone.  He was refused permission to appeal against the decision of the EAT leading to an appeal to the European Court of Human Rights.

The ECtHR held that Article 8 is construed widely to cover both private life and correspondence.  It was held that the photographs on the phone would come under the ambit of private life and the emails and messages sent would be regarded as correspondence.

The court referred to Barbulescu v Romania [2017] App No. 61496/08 when it was held that the use of workplace email address could still fall into the scope of Article 8. The question moved to whether the applicant then had a reasonable expectation of privacy in his actions.    On this point, the ECtHR held that he did not have a reasonable expectation considering the factual matrix where L had raised concerns about his behaviour and he had prior notice that the materials and communications would be used.  This was emboldened by the fact that the applicant did not challenge the use of the material at the disciplinary meeting.   For this reason, the applicant’s case was dismissed.

Practical Lessons

This case demonstrates how public sector employers will have to be aware of the provisions of the European Convention on Human Rights and the Human Rights Act 1998 in making decisions.  This can be seen with the right to private and family life under Article 8 which has grown significantly in the ECtHR jurisprudence.

Therefore, consideration should be made about the effect that the use of certain information may have on the employee and that it must be borne in mind the extent to which it would be reasonably expected that it was private information. 
https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-193839%22]}