Mr Garamukanwa had been in a relationship with a colleague, Ms Maclean. Shortly afterwards Ms Maclean raised concerns with her manager about emails Mr Garamukanwa had sent to her and other employees alleging she was having a relationship with another junior member of staff. The manager warned Mr Garamukanwa that his behaviour was inappropriate.
About 9 months later Mr Garamukanwa was suspended when the police informed the Trust that they were investigating claims by Ms Maclean that he had been stalking and harassing her and sending anonymous malicious emails to other employees of the Trust. After an investigation and disciplinary process Mr Garamukanwa was dismissed for gross misconduct. In coming to the decision to dismiss the Trust had relied heavily upon photographs that had been stored on Mr Garamukanwa's iPhone (that had been passed to them by the police) as well as emails and WhatsApp messages. Some of the emails were sent to colleagues' work email addresses. He had also provided the disciplinary panel with private communications between himself and Ms Maclean that were of an intimate nature.
Mr Garamukanwa unsuccessfully brought claims including unfair dismissal before the employment tribunal, EAT and Court of Appeal. He argued that using the material on the iPhone was a breach of Article 8 of the ECHR - his right to privacy. Mr Garamukanwa said he had reasonably expected the material on his phone would remain private but the courts did not accept that.
Leave to appeal was refused by the Court of Appeal so subsequent proceedings were brought in the ECHR based on an argument that the domestic courts decisions upholding the dismissal had constituted a breach of his right to privacy. In the circumstances, the ECHR held that Mr Garamukanwa could not reasonably have expected that any of the material or communications before the disciplinary panel would remain private. He had been arrested nearly a year after he had been warned about his inappropriate behaviour by the Trust. He could not reasonably expect any material or communications after the date of his warning that related to the harassment allegations, to remain private. He had also voluntarily provided additional private communications to the disciplinary panel.
While this case came down on the side of the Trust, employers should still be cautions when it comes to relying on private material in a disciplinary process. Each case will turn on its own facts, and it is also clear from earlier ECHR cases including Barbulescu v Romania that emails sent from an employer's computer could be covered by the concepts of private life and correspondence. Mr Garamukanwa's case shows the importance of putting an employee on notice at an early stage that allegations of misconduct have been made against them - the warning given to Mr Garamukanwa about his inappropriate behaviour appeared pivotal in the thinking of both the domestic courts and the ECHR. Employees should also note that both the provision of private material by the employee to the employer and a failure to challenge the use of it during the internal process will make it difficult to subsequently object if reliance is placed upon it.
