Case study: Accessing an employee’s personal phone

The case of Garamukanwa v ECHR highlights the difficulties around using information gathered from an employee’s personal mobile phone in disciplinary action.

BACKGROUND: George Garamukanwa (G) was dismissed by Solent NHS Trust from his position as a clinical manager. The basis for this decision was information and material seized from the employee’s phone during a police investigation into workplace harassment.

The year before his dismissal, G had been in a relationship with Ms M. Shortly after the relationship ended, Ms M raised concerns with her manager about emails G had sent to her and other employees alleging she was having a relationship with another staff member. The manager warned G that his behaviour was inappropriate.

Nine months later, the Trust was contacted by police who informed them they were investigating claims made by Ms M against G. She alleged he had been stalking and harassing her and sending malicious emails to other Trust employees.

The police shared with the Trust photographs stored on G’s phone, as well as emails and WhatsApp messages. Some of the emails were sent to work email addresses, some to personal ones. It was based on this evidence that the Trust decided to dismiss G for gross misconduct.

G raised claims including unfair dismissal at an employment tribunal, employment appeal tribunal and court of appeal. He argued that, in using material that had been found on his iPhone during a police investigation, the Trust breached Article 8 of the European Convention on Human Rights – the right to respect for one’s “private and family life, home and correspondence”.

However, G’s claims were unsuccessful.

The court held that he could not have reasonably expected that any material or communications before the disciplinary panel would remain private relating to the harassment allegations. He himself had volunteered private communications to the panel as well.

Despite the Trust being vindicated in this instance, employers must exercise caution when relying on private material in a disciplinary process. Each case is different and will be judged on its own merits. The court commended the Trust for having issued a warning to G from his manager at the start of the case, setting out the boundaries that were expected of him that he then proceeded to breach.