Decision on inadmissibility in the case related to decision on termination of employment based on evidence from private employee communication

The European Court of Human Rights has unanimously declared the application inadmissible in the case of Garamukanwa v. the United Kingdom (application no. 70573/17, 06.06.2019). 

The case concerned Mr Garamukanwa’s dismissal by a state-run health service after an investigation for harassment based on photographs stored on his iPhone, and on emails and WhatsApp correspondence. 

The applicant, George Garamukanwa, was employed by a National Health Service Trust (‘the Trust’) from October 2007 as a clinical manager. 

In June 2012 L.M., a colleague with whom he had had a relationship, raised concerns with her manager about emails he had sent her and other employees about her alleged relationship with a junior member of staff. The manager warned the applicant that his behaviour was inappropriate. He was suspended in April 2013 when the police informed the Trust that they were investigating claims by L.M. that he had been stalking and harassing her and sending anonymous malicious emails to employees of the Trust.

The Trust dismissed the applicant in December 2013 for gross misconduct. It relied in particular on photographs stored on his iPhone, passed to it by the police, linking him to certain anonymous emails, as well as personal emails and WhatsApp messages exchanged by the applicant and other employees. The applicant had voluntarily provided some of the communications at one of the disciplinary hearings. 

He challenged his dismissal in court, notably arguing that the Trust had relied on private material. His claim was ultimately dismissed in 2016 on appeal. The courts found that he could have had no reasonable expectation that the evidence relied on by the Trust would remain private

Relying on Article 8 (right to respect for private and family life, the home and the correspondence), applicant complained that the domestic courts’ decisions upholding his dismissal had constituted a breach of his right to privacy.

The Court found that the applicant could not reasonably have expected that the photographs and communications relied on by the disciplinary panel to dismiss him would remain private. He had already been told by his employer that his behaviour was inappropriate almost a year before the police had started investigating the harassment claims and his suspension from his post. Nor had the applicant sought to challenge the use of the iPhone material or any private communications during the disciplinary hearing. On the contrary, he had voluntarily provided the panel with further private communications.

Bearing in mind that the national courts came to the same conclusion, the Court found that the applicant did not provide serious reasons to prove otherwise and therefore rejected his complaint as inadmissible.

It also pointed out that the case could be distinguished from a recent one concerning privacy of communications in the workplace, Bărbulescu v. Romania ( no. 61496/08), where it had found that an employee had not been given notice as to the extent and nature of his employer’s monitoring of his communications.

References from the official website of the European Court on Human Rights