On occasion, an employer can find itself in possession of material evidencing potential misconduct, which was created or communicated outside of work or which relates to private matters. The question is, can the employer rely on this material as the basis for disciplinary action or will the employee’s right to privacy take priority?
Below we look at two recent cases which shed some light on this question.
Article 8 of the European Convention of Human Rights (“ECHR”) confers on individuals a right to respect for their private and family life, their home and their correspondence, known as a right to privacy. There are limited circumstances in which this right may be interfered with, including where necessary in the interests of public safety and for the protection of the rights and freedoms of others.
Previous cases on Article 8 have confirmed that a significant factor in determining whether the right to privacy attaches to specific material is whether the individual has a reasonable expectation of privacy in that material based on all the relevant facts. If there is no reasonable expectation of privacy then Article 8 will not be engaged.
Case 1: Police officers’ WhatsApp messages used for disciplinary
In the recent case of BC and others v Chief Constable Police Service of Scotland and others WhatsApp messages between a number of police officers in a group chat were discovered on a police officer’s mobile phone in the course of investigating offences of a sexual nature within the police force. Although the messages did not evidence any sexual offences, they included sexist, racist and homophobic comments and included crime scene photographs from live investigations.
The messages were in breach of the professional standards applicable to police officers and so were passed to the police disciplinary branch by the investigating officer. Disciplinary action was taken against several of the police officers involved. The officers claimed that use in a civil disciplinary matter of the WhatsApp messages collected as part of a criminal investigation constituted a breach of their rights to privacy.
The officers brought a claim alleging breach of Article 8. The court refused this and held that police officers are subject to certain police standards, which apply both while they are on and off duty. The officers’ right to privacy was therefore a limited one and a reasonable expectation to privacy would not apply if they were in breach of those standards. Further, interference in this right was justified in the interests of public safety given the nature of the messages. The court held that while these principles apply to police officers, an ordinary member of the public will usually have a reasonable expectation of privacy in WhatsApp messages.
The disciplinary panel was therefore entitled to use the messages as the basis for disciplining the officers.
Case 2: Material from employee’s phone used to justify dismissal
In the recent case of Garamukanwa v United Kingdom, Solent NHS Trust (the “Trust”) dismissed an employee (Mr Garamukanwa) in reliance on private communications and material seized from his mobile phone during a police investigation into allegations of harassment made against him by another employee of the Trust (Ms Maclean).
Mr Garamukanwa and Ms Maclean had been involved in personal relationship. When that relationship ended, Mr Garamukanwa emailed a colleague expressing concern about a new relationship Ms Maclean had formed with another employee of the Trust, Ms Smith. He also emailed them both on the issue of their relationship.
Ms Maclean complained to her manager, who told Mr Garamukanwa that the emails were inappropriate but took no further action. Ms Maclean and Ms Smith were then subjected to a 10-month campaign of stalking and harassment in the form of frequent anonymous malicious messages sent directly to them, and to other employees of the Trust about them.
Ms Maclean complained to the police and a criminal investigation was initiated. The Trust also began its own investigation. During the police investigation, the police found photographs on Mr Garamukanwana’s phone of Ms Maclean’s home address and details of the email accounts from which the anonymous messages had been sent. Based on the criminal and internal investigations, the Trust concluded that there was sufficient evidence to link Mr Garamukanwa to the anonymous emails.
Following disciplinary proceedings, Mr Garamukanwa was dismissed by the Trust for gross misconduct. Mr Garamukanwa brought a claim of unfair dismissal, arguing that the Trust had breached Article 8 of the ECHR by considering matters related to his private life and relying on this as evidence to justify his dismissal.
The Employment Tribunal and Employment Appeal Tribunal (EAT) found that Article 8 was not engaged and dismissed Mr Garamukanwa’s claim. The Tribunal referred to the fact that the anonymous emails were sent to work email addresses and in part dealt with work-related matters, and the EAT further noted that the emails sent to Ms Maclean’s personal email address also dealt with workplace issues.
Mr Garamukanwa then brought proceedings in the European Court of Human Rights. The central question for the Court was whether Mr Garamukanwa had a reasonable expectation of privacy in the material relied upon by the Trust to justify his dismissal.
The Court agreed with the EAT and held that Mr Garamukanwa did not have a reasonable expectation of privacy in the material. The Court focused on Mr Garamukanwa’s knowledge of Ms Maclean’s complaint to her manager about the first email. The Court agreed that he was, therefore, on notice that allegations of harassment had been made and that he could not reasonably have expected that any further communications linked to those allegations would remain private.
Another persuasive factor for the Court was that Mr Garamukanwa had not challenged the use of the material during the disciplinary proceedings and that he had, in fact, submitted further personal emails and WhatsApp messages between himself and Ms Maclean for consideration by the Trust. The Court held there could not, therefore, be any expectation of privacy over the material before the Trust’s disciplinary panel.
Ultimately, both cases demonstrate that employers should be cautious when considering using private correspondence as part of disciplinary proceedings and carefully consider the impact privacy rights might have. Both workplace communications and personal communications are capable of falling within the ambit of Article 8. Employers must ask themselves whether there is a reasonable expectation of privacy over such communications before seeking to rely on them.
The outcome of BC & Others in relation to police offers will be of comfort to some employers who find themselves in similar situations, particularly those employers who operate in a regulated industry or where the employees are subject to formal professional standards (such as doctors, teachers and those in financial services). Where such standards do not apply, the court’s comments that ordinary members of the public will usually still have a reasonable expectation of privacy in WhatsApp messages should not be ignored.
In Garamukanwa the source and recipients of the communications were relevant, as was the content of the communications and the fact the communications were not purely personal in nature. The determinative factor though was that the employee had effectively been warned by his employer that his behaviour was inappropriate. This meant that there was no reasonable expectation of privacy in the communications after the warning. It is questionable whether the same conclusion would have been reached without this prior warning.
In another recent case, an employer was found to have breached Article 8 partly on the ground that he had not been given notice that his communications would be monitored by his employer. Here, a good IT and electronic communications policy would have been helpful and employers would be well-advised to ensure that they have these policies in place.