Is using personal messages as evidence in a disciplinary a ‘breach of privacy’?

A couple of recent cases have looked at an employee’s right to privacy under Article 8 of the European Convention of Human Rights and how this influences the use of evidence gathered by employers during disciplinary proceedings. 

According to Article 8, employees have the right to respect for their private and family life, their home and their correspondence. Therefore, there is a risk that certain evidence may breach an individual’s right to privacy, depending on the nature of the evidence and how it was obtained.  

One of the most notable cases in this regard is Barbulescu v Romania in which an employee was dismissed for sending personal messages during working hours using a Yahoo email account set up for work use. The European Court of Human Rights ruled that the dismissal was unfair as the employer did not inform the employee that they should expect to have their emails monitored and were unable to justify why such monitoring was required.

Whilst this decision does not mean that employers are unable to monitor employees’ emails under any circumstances, they must be able to justify any intrusion into an employee’s personal life. UK law allows employees’ communications via social media system to be monitored or intercepted in certain circumstances, including for the purpose of checking for breaches of company policies.

Guidance from the Information Commissioner’s Office suggests employers undertake impact assessments to determine when monitoring is justified. This involves identifying a clear purpose for the monitoring and assessing whether there are less intrusive ways of achieving the required aim. If monitoring employees' personal communications is the only available option then employers should take steps to remove employees' expectation of privacy. This includes having robust policies regarding computer use and social media which notify employees when and how any communications will be monitored.

With this in mind, a more recent case has again focused on the use of personal email as well as WhatsApp messages that were used as evidence during a misconduct case. In Garamukanwa v UK, an employee had been using personal correspondence to stalk and harass a fellow colleague. Evidence of this was uncovered during a criminal investigation by the police and ultimately influenced the decision to dismiss the employee for gross misconduct.

Despite appealing that the use of personal messages as evidence breached his right to privacy, the employee’s claim was dismissed by the European Court of Human Rights. In forming their decision, the Court applied the ruling of Barbulescu, adding that there was no reasonable expectation of privacy in respect of the material provided by the police as the employee had previously been informed by his employer about the inappropriate nature of sending personal emails to the victim.

Therefore, as a general rule employers need to keep in mind that deciding if an employee has a reasonable expectation of privacy will always depend on the particular circumstances of the case. However, recent examples show that justification and prior warning are important in determining when certain evidence may be used and employers should ensure these aspects are accounted for in any relevant workplace policies.   

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