Ruling permits employer to use employee’s personal mobile phone contents in UK dismissal case

1 July 2019

In the recent case of Garamukanwa-v-United Kingdom, the European Court of Human Rights held that an employer was justified in using data from an employee’s personal mobile phone in the context of his dismissal. While on the face of it, the use of such data appeared to potentially contravene Article 8 of the European Convention of Human Rights (right to privacy), in this particular case the Court held that the employer was justified in accessing such data so as to protect the health and safety of others.

The case concerned Mr. Garamukanwa’s dismissal from the National Health Service Trust (UK). The applicant was engaged in a relationship with L.M. which subsequently ended. Thereafter L.M. allegedly began a new relationship with another employee D.S. Mr. Garamukanwa sent an email to the two raising issue with their alleged relationship. L.M. complained to her manager who explained to Mr. Garamukanwa that he felt this was inappropriate. By this time an anonymous letter had been sent to the same manager alleging that L.M. and D.S. had been behaving inappropriately at work. Thereafter, between the period of June 2012 and April 2013, L.M. and D.S. became the victims of a campaign of stalking.

The police were alerted and arrested Mr. Garamukanwa (but no charges were brought against him). During the investigation the police found photographs on the applicant’s iPhone of L.M.’s home address and a sheet of paper which contained details of the email addresses from which the anonymous emails had been sent (‘the iPhone material’). The police passed evidence of its investigation to the employer.

The employer then carried out its own internal investigation and held a disciplinary hearing and concluded that there was sufficient evidence to link the applicant to at least some of the anonymous emails. Mr. Garamukanwa was dismissed on the basis of gross misconduct. In their letter confirming their decision, the disciplinary panel referred to various pieces of evidence including the iPhone material.

Mr. Garamukanwa appealed to the UK Employment Appeals Tribunal and subsequently the Court of Appeal on various grounds. He argued that the employer had relied on personal material to justify its decision to dismiss him, and that they had failed to draw a distinction between public and private material and thus there had been a violation of Article 8 of the European Convention of Human Rights.

The European Court of Human Rights found that in this case there was no reasonable expectation of privacy as per Article 8 over any of the material or communications before the disciplinary panel and rejected the applicant’s claim.

For further information, please contact Maura Connolly, Head of Dispute Resolution or another member of the Dispute Resolution team at Eugene F. Collins.

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