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Employment Law News

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USE OF WHATSAPP MESSAGES TO BRING DISCIPLINARY PROCEEDINGS AGAINST POLICE OFFICERS WAS NOT A BREACH OF PRIVACY RIGHTS

The Court considered that there was a legal basis for the Police Service in Scotland to bring misconduct proceedings against individual police officers based on messages they had sent to each other on a WhatsApp group. This would not have applied had they not been under professional obligations to maintain standards.

An investigation took place into sexual offences within the Police Service of Scotland. During this investigation, messages sent via WhatsApp on a phone belonging to a suspect, who was a police officer, were found and reviewed. The messages formed part of two group chats between officers.

The messages were deemed “sexist and degrading, racist, anti-Semetic, homophobic, mocking of disability” and having a “flagrant disregard for police procedures by posting crime scene photos of current investigations.”

Misconduct charges were, therefore, brought against a number of officers who then brought a claim complaining that using their Whatsapp messages to bring non-criminal misconduct proceedings against them was unlawful and a breach of their rights to privacy under the European Convention on Human Rights.

The Court found that an ordinary member of the public using WhatsApp could have a reasonable expectation of privacy. However, unlike members of the general public, officers are subject to certain police Standards and Regulations. By becoming an officer, they have accepted that their right to privacy is limited to the extent set out in those regulations. If, in their private life, an officer were to act in such a way that it “is likely to interfere with the impartial discharge of his duties or is likely to give rise to the impression among members of the public” then they can have no reasonable expectation of privacy.

One purpose of the Standards is to maintain public confidence in the police. Here, the officers were exchanging messages within a group of people whom they knew were under a positive obligation under the Standards to report the type of messages that were being sent. This fact alone increased the risk of disclosure by a member of the group.

It was deemed to be justified to interfere with the right to private life in this way as it was necessary for public safety. An officer who fails to meet the Standards is likely to lose the confidence of the public. Since maintaining public confidence is essential for successful policing, anything which exposes a mind-set where the public’s right to be treated fairly is called into question and would put public safety at risk.

The Court was clear that for the average individual, who does not work in a regulated environment, messages such as these will remain private regardless of how unpalatable their content is. Nevertheless, for those subject to professional standards or working in regulated industries, there will be limits on the right to keep such messages private. This will include solicitors, barristers, doctors and financial services workers etc.

BC and others v Chief Constable Police Service of Scotland and others [2019] CSOH 48

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Employment Law News

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DIRECT DISCRIMINATION DUE TO “PERCEIVED” DISABILITY OF POLICE OFFICER

The Claimant, Mrs Coffey, applied to the Wiltshire Constabulary to become a police constable. However, a medical examination revealed that she suffered from some hearing loss. Following Home Office guidance, the Wiltshire Constabulary arranged for a practical functionality test, which she passed. This enabled Mrs Coffey to work as a constable (without any adjustments).

Mrs Coffey later applied to transfer to the Norfolk Constabulary, disclosing her hearing loss and providing a copy of the report from the functionality test and advised that no adjustments to her role had been necessary. She underwent a first medical, which recommended an “at work” test. Rather than provide this, the constabulary obtained a further medical opinion. The advice stated that Mrs Coffey would pass a practical test and a further ENT specialist reported that her hearing levels were stable. Despite this, the Acting Chief Inspector (ACI) rejected the application on the grounds that she did not meet the National Standards on hearing.

The Court of Appeal held that for claims of perceived disability discrimination, the alleged discriminator must believe that all elements in the statutory definition of disability were present although they did not have to attach the label “disability” to them. That was the case here even though in fact the employee was not disabled.

The Court concluded that the ACI had wrongly acted on the basis of a stereotypical assumption that Mrs Coffey’s hearing loss would render her incapable of performing front-line duties.

Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061

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Employment Law News

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NO BREACH OF PRIVACY WHEN EMPLOYEE DISMISSED USING MATERIAL FOUND ON HIS MOBILE PHONE 

The Claimant, Mr Garamukanwa, was employed by Solent NHS Trust as a clinical manager. He was involved in a personal relationship with a female colleague which ended. Shortly afterwards, he emailed another colleague, expressing concern that she had formed a personal relationship with a junior female staff member. They both complained to a manager who spoke to Mr Garamukanwa about his behaviour. A campaign of harassment and stalking against the two women then took place for around 10 months. This included a number of anonymous, malicious emails and messages that were sent to employees of the Trust and to the women personally, making various allegations against them. Property belonging to both of them was also damaged.

A complaint was made to the police who informed the Trust that they were investigating the claims and there were serious concerns regarding the conduct of the Claimant. The Claimant was suspended and during the course of the police’s investigations, the police found photographs of one of the women’s home addresses on the Claimant’s phone and a sheet of paper containing details of the email accounts from which anonymous messages had been sent. The police passed this information onto the Trust, which was carrying out its own internal investigation. The person carrying out the investigation concluded that there was sufficient evidence to link the Claimant to at least some of the anonymous emails. At the subsequent disciplinary hearing, the Claimant voluntarily provided the panel with further evidence on his behalf, including personal emails and WhatsApp correspondence between himself and the complainant. Taking the personal iPhone material into account, the Trust dismissed the Claimant for gross misconduct.

The Claimant brought unfair dismissal proceedings in which he alleged that the Human Rights Act and the European Convention on Human Rights were breached by the Trust as matters relating to his private life were examined and used to justify his dismissal. The Claimant contended that he had a reasonable expectation that this material would remain private. The Claimant took his case to the European Court of Human Rights.

The Court dismissed the appeal. It held that the fact that an email touched upon both professional and private matters, or was sent from a workplace email address did not automatically mean that it would fall outside the scope of “private life” for the purposes of the right to privacy. However, given the facts, the Claimant did not have a reasonable expectation of privacy in respect of the iPhone material and private communications relied upon by the Trust. The Claimant had been placed on notice for almost a year that concerns had been raised about his behaviour by the Trust. This was enough notice that allegations of harassment had been made against him and he could not have reasonably expected that, after this date, any materials or communications which were linked to the allegations would remain private.

It was also held relevant that the Claimant had not challenged the use of the material obtained from his iPhone or any of the private communications during the course of the disciplinary hearing and that he had voluntarily provided the disciplinary panel with further private communications of an intimate nature between him and the complainant. Hence, there was no reasonable expectation of privacy over any of the material or communications before the panel.

This case is a reminder of the importancefor employers of putting employees on notice about allegations of misconduct against them at an early stage.

Garamukanwa v United Kingdom (79573/17) [2019] 6 WLUK 109

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Employment Law News

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RELIGION vs SEXUAL ORIENTATION

NHS Trust did not discriminate when removing Christian NED for speaking out against homosexuality and same-sex couple adoption

Mr Page, a practising Christian, was a non-executive director of an NHS Trust and a lay magistrate sitting in criminal and family courts. He participated in decisions involving adoptions.

In July 2014, Mr Page was part of a panel of Magistrates hearing a same-sex couple adoption application about a young child and he expressed his view to his fellow magistrates that it was his belief that it is always in the best interests of a child to be brought up by a mother and father, and that it was “not normal” to be adopted by a single parent or same-sex couple. His fellow Magistrates complained and Mr Page was subjected to disciplinary action. He subsequently gave an interview to the Mail on Sunday and took part in a radio phone-in.

Mr Page did not inform the Trust about the above. However, the Trust found out about his interviews after receiving a complaint and warned Mr Page that the public expression of his views could undermine confidence that he would exercise his judgment impartially and instructed him to inform it first of any further media interest.

Despite this, Mr Page decided to continue to give interviews to various media outlets, including on the BBC Breakfast News. As a result, he was removed from his magistracy in early 2016. However, Mr Page continued to participate in further media interviews live on ITV News and Good Morning Britain. He stated that homosexual activity was wrong and that he didn’t agree with same sex marriage. Mr Page was subsequently suspended by the Trust, which thereafter did not renew the term of his office as a NED.

Mr Page claimed direct and indirect discrimination against the Trust and argued that he had been removed from office because of his religious beliefs.

The Employment Appeal Tribunal dismissed the claim. It had been made clear that there were findings of non-discriminatory reasons for the treatment alleged. In any event, a suitable comparator would have been one who, for reasons unrelated to religious belief, spoke to the media against the Trust’s instructions and whose remarks would have been likely to have a negative effect on the Trust’s ability to serve the community in its catchment area. There was little doubt that such a comparator would have been treated in exactly the same way as Mr Page.

This case illustrates that the tension between religion and sexual orientation in discrimination claims continues. However, ultimately, Mr Page was not dismissed because he held the views that he held; it was the fact that he repeatedly contacted the media having been told repeatedly that he should not.

Page v NHS Trust Development Authority [2019] UKEAT/0183/18

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