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“Hotline Bling, is it a private thing?” – The ECtHR consider an employee’s right to privacy, in regards to private texts and emails, under Article 8 ECHR

Mr Garamukanwa was employed by Solent NHS Trust (the Trust). He had a relationship with a fellow colleague Ms Maclean which was short-lived. Mr Garamukanwa then emailed a colleague expressing concerns that Ms Maclean and Ms Smith (who was a junior member of staff) had formed a personal relationship. Ms Maclean immediately complained to her manager who told Mr Garamukanwa that the contents of the messages were inappropriate. Ms Maclean, Ms Smith and various employees of the Trust were then subjected to a campaign of stalking and harassment from an anonymous sender, as well as having personal belongings damaged – due to his past behaviour it was understandably suspected that this was Mr Garamukanwa.

Ms Maclean eventually complained to the Police about the anonymous stalker and made them aware of Mr Garamukanwa’s previous inappropriate behaviour. The Police informed the Trust that they were investigating Ms Maclean’s claims and that they had serious concerns about Mr Garamukanwa’s conduct. In response to this, the Trust suspended Mr Garamukanwa pending investigation. During the Police’s own investigations, and whilst Mr Garamukanwa was still suspended, the Police found photographs of Ms Maclean’s house on Mr Garamukanwa’s phone, as well as a  piece of paper listing the anonymous email addresses used to harass and/or stalk the Trust’s staff. The Police passed this information to the Trust who, based on this evidence, progressed their internal investigation to disciplinary. During the disciplinary hearing, Mr Garamukanwa did not object to the use of the evidence provided by the Police. He also disclosed to the Trust further screenshots of WhatsApp messages and emails of a personal nature between him and Ms Maclean. Based on the evidence from both the Police and Mr Garamukanwa, the Trust dismissed him for gross misconduct. He appealed this decision but it was not upheld.

Mr Garamukanwa initially brought a claim for unfair dismissal in the Employment Tribunal. He argued that the Trust had breached Article 8 of European Convention on Human Rights (which provides that everyone has the right to respect for their private and family life, their home and their correspondence) in that they had examined matters relating to his personal life which had then be used to dismiss him. The Employment Tribunal dismissed his claim asserting that Article 8 was not engaged.

Mr Garamukanwa’s appeal of this decision was then successively dismissed by the Employment Appeal Tribunal, the Court of Appeal and the European Court of Human Rights.

In its Judgment, the European Court of Human Rights found that Mr Garamukanwa could not have had a reasonable expectation of privacy with respect to the messages he had sent to Ms Maclean. He had been on notice of the allegations against him for nearly a year before the internal investigation began, and therefore must have expected that any correspondence sent to Ms Maclean after this date that related to the allegations would not remain private. It was also pivotal in this case that Mr Garamukanwa had not objected to the use of the material from the Police at any stage during the investigation or disciplinary proceedings, and he had actually provided further personal information himself. Further, the contents of the messages were a combination of personal and work matters.

Cases of this nature will turn on their own facts and whether or not an employee had a reasonable expectation of privacy will depend on the particular circumstances. In this case, much seemed to turn on Ms Maclean’s immediate complaint about Mr Garamukanwa - if those conversations had not taken place, would his communications have been deemed private? In reality, this may not have made much difference, but it does illustrate the importance of putting employees on notice of the allegations against them at the earliest opportunity.

It is also important to note that the Employment Appeal Tribunal’s Judgment suggested that even if Article 8 had been engaged, interference with this right would have been justified by the Trust’s need to protect the health and welfare of its employees.

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