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

by Proskauer - International Labor Law
Contact

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.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer - International Labor Law | Attorney Advertising

Written by:

Proskauer - International Labor Law
Contact
more
less

Proskauer - International Labor Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.