The Court refused to protect the privacy of communications of an employee who harassed his girlfriend by sharing her photos with others via e-mails and messages!

JUDGMENT 

Garamukanwa v. United Kingdom 06.06.2019 (no. 70573/17)

see here 

SUMMARY 

Protection of correspondence and privacy. Harassment of a woman by sharing her photos through e-mails and messages to third parties by the applicant.

Dismissal of the applicant from the National Health Service after a harassment investigation based on photos found on his iPhone and sent via emails and messages through WhatsApp to several employees. In the disciplinary proceedings against him, he handed over the above offending material.

The Court did not find a violation of the applicant’s privacy and correspondence since the applicant could not reasonably expect that the photographs and conversations on which the Disciplinary Board was based to dismiss him and which he himself delivered in his will would remain private . He had already been informed by his employers that his conduct was inappropriate one year before the police began investigating harassment complaints and was suspended.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, George Garamukanwa, is a British national, who was born in 1970 and lives in
Southampton (England, UK).

Mr 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.

After an internal investigation and disciplinary proceedings, 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, including L.M. 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.

THE DECISION OF THE COURT 

The Court had reiterated in previous cases that communications from business premises could be
covered by the notions of “private life” and “correspondence” under Article 8. In determining
whether Article 8 was applicable, it had stated that an individual’s reasonable expectation of privacy
was a significant though not necessarily conclusive factor.

It was therefore clear from the Court’s recent case-law that Article 8 of the Convention could be
applicable in a case where an employer relied on material or communications of a private nature to
justify a dismissal.

However, in the applicant’s case, the Court considered that the applicant could not reasonably have
expected that any of the material or communications before the disciplinary panel would remain
private.

In particular, by the time the police had arrested and interviewed him in April 2013 concerning the
harassment allegations, the applicant had been aware for almost a year that the Trust considered his
behaviour inappropriate. He could not therefore have reasonably expected that any material or
communications after June 2012 linked to the harassment allegations would remain private.

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.

The domestic courts had considered the applicant’s Article 8 arguments and come to the same
conclusion. The Court could not see that the applicant had submitted any strong reasons for it to
find otherwise and therefore rejected his complaint as inadmissible(echrcaselaw.com).


ECHRCaseLaw

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