Examining employee’s phone did not breach his ‘human rights’

An employer did not breach an employee’s human rights when it checked his phone for emails and messages while investigating a claim of harassment.

That was the decision of the Employment Appeal Tribunal (EAT) in the case of an NHS Trust and one of its managers.
The issue arose after the manager formed a personal relationship with a nurse at one of the Trust’s hospitals. He later became concerned that she had become friendly with one of her female colleagues.
The nurse then complained that the manager was harassing her and several malicious emails about her were sent anonymously to senior management.
The Trust investigated and checked the manager’s iPhone, which contained various items linking him to the anonymous emails. The manager was dismissed for gross misconduct and responded by bringing a claim of unfair dismissal.
He also claimed that in checking his phone, the Trust had breached his right to privacy under the European Convention on Human Rights (the Convention). The Employment Tribunal dismissed his unfair dismissal claim and also ruled that his human rights had not been breached.
The EAT has upheld that decision. It held that although the Convention did protect private communications, it did not apply in this case because the manager’s emails had been sent to colleagues at their work addresses and had caused upset that had affected their work.
This is an interesting case but it should be remembered that generally, the Convention does apply to private correspondence, but can cover work emails. Legal advice should be sought before doing anything that might be considered to be invading personal privacy.
For more information about this article or any aspect of our employment service, please call Jeremy Garson on 020 8907 2000 or click here to email him and he will be delighted to help you (there is no charge for an initial telephone discussion).
Case featured:
Examining employee’s phone ‘did not breach his human rights’
Garamukanwa v Solent NHS Trust
Employment Appeal Tribunal
Mrs Justice Simler
March 2016

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