It is increasingly common in employment tribunal proceedings for employees to seek to rely upon the European Convention on Human Rights, in particular the right to privacy under Article 8. The case of Garamukanwa v United Kingdom [2019] IRLR 853 is a reminder that there are limitations to those rights.
In that case an NHS manager was dismissed following an investigation into an allegation that he had harassed a work colleague. The employer relied primarily upon iPhone content, personal emails and Whatsapp correspondence when taking the decision to dismiss. The European Court of Human Rights has dismissed an application that there was a breach of the Convention in the employer’s use of that material.
It acknowledged that “in some circumstances reliance by an employer on material or communications of a private nature may engage Article 8 of the Convention.” In this case, however, “the applicant had sufficient notice that allegations of harassment had been made against him” and had not sought “to challenge the use of the iPhone material or any private communications during the course of the disciplinary hearing”. In those circumstances, he had “no reasonable expectation of privacy” and the disciplinary panel was entitled to rely upon the material available to it.