Case Law Update: Harassment & Right to Privacy

Ben McCarthy

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26 Nov 2019

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The European Court of Human Rights (ECHR) has ruled that an employer relying on evidence provided by the Police during a disciplinary procedure didn’t breach an employee’s right to privacy.

If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.

Garamukanwa v United Kingdom

The law

Article 8 of the European Convention of Human Rights is key to this case. It provides everyone with the right to respect for their private and family life, their home and their correspondence.

It goes on to outline that there shall be no prevention by a public authority with the exercise of this right. The only exception is when it’s necessary in the interests of a number of specific areas. These areas include the prevention of disorder or crime or for protection of health or morals.

The ‘reasonable expectation’ of privacy is also key in these cases. This has been previously confirmed by the Supreme Court.

In the case of Barbulescu v Romania for example. It was confirmed that this expectation is significant but not necessarily a conclusive factor. Employers can monitor employee activities without breaching Article 8. However, steps must be taken to remove this expectation.

Background to the case

In this case, the employee had recently been involved in a personal relationship with his colleague, Ms Maclean.

Not long after this ended, the employee emailed Ms Maclean and a junior staff member, Ms Smith. He sent the email to voice his concern that they had entered into a separate personal relationship.

Ms Maclean complained about this to her manager, who later made the employee aware that this had been inappropriate.

Over the course of the next ten months, Ms Maclean and Ms Smith suffered an ongoing campaign where they were stalked and harassed. This included insulting emails about their relationship being sent to them and to their colleagues.

The Police were eventually informed and conducted an investigation. Ultimately, they brought no charges against the employee. However, they found evidence at his home that held details of some of the email accounts that had been used.

The Police passed this onto the organisation, who were also conducting an investigation into the employee’s conduct.

The organisation reviewed this material and decided to proceed with a disciplinary procedure.

A disciplinary hearing was held, during which the employee provided some additional evidence. This included emails and WhatsApp messages exchanged directly between him and Ms Maclean.

The organisation ultimately decided to dismiss the employee for gross misconduct. They relied upon the material that had been provided to them by the Police. The employee appealed unsuccessfully against this decision.

What did the employment tribunal say?

The employee brought numerous claims to the employment tribunal (ET), including unfair dismissal. He argued that the decision to dismiss him had breached Article 8 as it had been made through the use of evidence that related to his private life.

The ET dismissed his claim, finding that Article 8 was not engaged in this situation. The tribunal outlined that the emails also concerned work-related topics. They’d also been distributed directly to work email addresses.

What did the Employment Appeal Tribunal say?

The employee appealed against this decision to the Employment Appeal Tribunal (EAT). His main argument was that the organisation had relied on private evidence to dismiss him. He argued that he’d had a reasonable expectation that this evidence would remain private.

His appeal was dismissed. In forming their decision, the EAT held there was no reasonable expectation of privacy as:

  • the employee had not fought against the use of the material at any point in the disciplinary procedure
  • the employee should’ve expected Ms Maclean would feel harassed by his emails after the conversation with her manager. He hadn’t expected that she wouldn’t share these emails as further evidence of his misconduct
  • the email content also made reference to workplace topics so were not just personal to the employee.

Even if Article 8 was engaged, the decision to dismiss the employee was still justified. This was because the decision was made to protect the welfare, health & safety of the organisation’s employees.

What did the European Court of Human Rights say?

The employee took his case to the ECHR. He argued that the use of the private material to dismiss him, and all subsequent decisions to uphold this, breached Article 8. His appeal was dismissed.

In forming their decision, the Court applied Barbulescu. They outlined that an email referencing both professional and private matters could still have potentially breached Article 8. However, it didn’t because there was no reasonable expectation of privacy in respect of the material provided by the Police.

By the time of the Police investigation, the employee had previously been informed about the inappropriate nature of sending personal emails regarding Ms Maclean’s relationship.

Therefore, he couldn’t have reasonably expected any additional evidence outlining his continued behaviour to remain private.

Takeaway points

A reasonable expectation of privacy will always depend on the circumstances and evidence.

A key factor behind this decision was the fact that the employee was put on notice about the allegations against him at an early stage. This made him fully aware of the unacceptable nature of his conduct. This in turn served to remove his reasonable expectation of privacy.

TL;DR

Two employees were in a personal relationship which ended. One of the employees—Ms. Maclean entered into a new relationship with another employee, Ms. Smith.

The two were then subject to harassment and stalking by Ms. Maclean’s former partner, including abusive emails.

Both the police and the organisation began an investigation into the employee’s behaviour. He wasn’t convicted of a crime, but significant evidence was collected by the police and passed on to the employer.

The employer then decided to dismiss the employee for gross misconduct.

The employee brought numerous claims against his employer, claiming that they’d used private evidence to dismiss him. He invoked Article 8, entitling him to a reasonable expectation of privacy.

The ET dismissed his claim, as did the EAT. The case was taken to the ECHR which also dismissed his claim. The main reason for all of the above dismissing his claim/appeal was due to the fact that the employee was aware of the impact of his emails, and so should have expected they wouldn’t be kept private. Also, at no point during the disciplinary preceding his dismissal did he fight against any of the materials being used.

Expert support

Worried how this latest ruling might impact your business? Dealing with a difficult HR situation and not sure where to turn? Speak to a Croner expert today for support and guidance on 01455 858 132.

About the Author

Ben McCarthy works as a content writer for Croner producing commentary and guidance on employment law and key HR developments. Coming from an extensive legal background, Ben regularly constructs key training materials for clients and advisers, and provides daily contributions to national publications.

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