December 9, 2018

December 07, 2018

Subscribe to Latest Legal News and Analysis

UK Tribunal Defines Some Limits on Employee Privacy Protections and Expands Anti-Discrimination Rights

Employee’s Privacy Rights

European courts continue to grapple with the limits on employee protections under Article 8 of the European Convention of Human Rights.  Article 8 protects a person’s right to respect for their private and family life, and our blog has actively tracked developments on the subject (to review prior rulings, see here, here, and here). The UK’s Employment Appeal Tribunal (EAT) recently further defined the limits of an employee’s expectations of privacy in the workplace when it held that an employee had no reasonable expectation of privacy in emails and photographs from his personal phone that had been passed to the police.

In the case, Garamukanwa v Solent NHS Trust, UKEAT/0245/15/DA, an employee of a hospital, Mr. Garamukanwa, had been in a relationship with a nurse (a fellow employee) that ended. He believed that she left him for another nurse at the hospital, and sent emails to both individuals. An anonymous individual then reported their relationship to a manager, an anonymous Facebook account was set up under the nurse’s name, and anonymous malicious emails were sent to the hospital’s management regarding the nurse. In light of these anonymous actions, the nurse felt threatened, and she complained to the police. Mr. Garamukanwa was suspended pending an investigation, but the police decided to not take any action. In the course of the investigation, however, the police passed all relevant evidence to the employer, including emails and photographs from Mr. Garamukanwa’s personal iPhone. The hospital subsequently terminated his employment.

On appeal, Mr. Garamukanwa argued that his employer could not use the information gathered by the police from his iPhone as a basis for his termination, because it violated his Article 8 rights. The EAT rejected this argument. Importantly, the EAT ruled that the employer’s termination of Mr. Garamukanwa based on the emails and photographs did not even engage Article 8, let alone violate its provisions. Significantly, the EAT held that because the emails were sent to the work addresses of the recipients, dealt with work-related matters, and affected the work of the nurse and other recipients, Mr. Garamukanwa did not have a reasonable expectation of privacy under Article 8. The EAT found it relevant that the company did not rely on any other personal materials from Mr. Garamukanwa outside of what the police provided to them when deciding to terminate him.

This decision provides clarification for companies investigating misconduct. Importantly, even if the employee is using a private device to harass co-workers, if the actions are not solely personal and are connected with work-related matters and the workplace, the employer may be able to rely upon those communications, even if they contain some personal material, as grounds for termination.

Disability Discrimination Protections

Multi-national employers should also be aware of a recent expansion of disability discrimination protections under the UK’s Equality Act 2010. The act prohibits treating an employee unfavorably because of something arising from the employee’s disability unless the unfavorable treatment is a proportionate means of achieving a legitimate purpose. The case, Risby -v- London Borough of Waltham Forest, UKEAT/0318/15/DM, centered on a training course for employees at a location that did not have wheelchair access. One of the employees, who is paraplegic, was extremely upset about the decision, and shouted, swore and made a racist comment toward a junior colleague. The employee was immediately dismissed. The EAT overturned his dismissal, however, holding that he was terminated because of his disability. The EAT reasoned that while his short temper was a personality trait, the employee would not have been angered by the decision to hold the workshop in a venue without wheelchair access if he had not been paraplegic, and therefore his disability was an “effective cause” of his conduct.

This is a broad reading of the Equality Act of 2010, and expands the types of conduct that are protected as ‘caused’ by a disability. Employers operating in both the US and the UK should be particularly aware that this differs markedly from the protections available to US employees under the Americans with Disabilities Act (ADA). While the ADA protects from discrimination against disabilities, the regulations are clear that, “[t]he definition of an impairment…does not include common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.” Nonetheless, employers in the UK should be vigilant when terminating an employee with a disability to ensure that the termination is not based on conduct that may be related to a disability.

© 2018 Proskauer Rose LLP.

TRENDING LEGAL ANALYSIS


About this Author

Erika C Collins, Labor, Employment, Attorney, Proskauer Rose, LAw Firm
Partner

Erika Collins is a Partner in the Labor & Employment Law Department and co-head of the International Labor & Employment Law Group, resident in the New York office. Erika advises and counsels multinational public and private companies on a wide range of cross-border employment and human resources matters throughout the Americas, Europe, Africa and Asia.

212-969-3555
Daniel Ornstein, Litigation Attorney, Proskauer Law FIrm
Partner

Dan Ornstein leads our London labor and employment team and is a co-head of our International Labor & Employment Group. He has over 15 years of experience dealing with a broad range of UK and international employment issues. Dan is a go-to advisor for clients who rely on his sophisticated advice both on day-to-day matters and high-stakes situations. Dan is ranked in Chambers UK, which describes him as "incredibly analytical", "incredibly intelligent and an excellent sounding board” and someone who “displays both empathy and an assured knowledge of the best way to treat cases." He is also recognized in Legal 500 UK and International Who's Who of Management Labour & Employment Lawyers.

20-7539-0601
Law Clerk

Yonatan Grossman-Boder is an associate in the Labor & Employment Law Department. He assists clients in a wide range of labor and employment law matters, including litigations, arbitrations, employment discirmination, labor-management relations and internal investigations.  

At Duke University School of Law, Yoni served as the publication and lead articles editor of Law and Contemporary Problems and was a legal intern at the New York Human Resources Administration Employment Law Unit. As a legal intern, he worked on a variety of employment matters, including employment...

212-969-3184