Employer's disciplinary investigation was not an invasion of privacy
Author: Daniella Magennis
In the case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations against that same employee where such content has an effect on work-related matters.
Mr Garamukanwa, a clinical manager, developed a personal relationship with a staff nurse, Ms Maclean. Following the breakdown of this relationship, Mr Garamukanwa suspected that Ms MacLean may have started a new relationship with a female colleague, Ms Smith. In June 2012, Mr Garamukanwa emailed both Ms Maclean and Ms Smith threatening that if they did not inform their manager of their relationship, he would. Even before this email had been sent, an anonymous letter had been sent to their manager accusing Ms Maclean and Ms Smith of ‘inappropriate sexual behaviour’. In addition, Mr Garamukanwa sent numerous malicious emails from fictitious email addresses to colleagues and members of the Trust’s management. Ms Maclean reported Mr Garamukanwa to the Police and he was investigated for stalking and harassment. Although he was arrested, he was not charged.
When the Trust wished to carry out its own investigation, the Police provided copies of photographs that had been found on Mr Garamukanwa’s mobile phone during their investigation. One photograph was of a piece of notepaper that listed details relating to the email addresses from which the malicious emails had been sent. Largely based on the photographic evidence that the Police had found on his phone, Mr Garamukanwa was summarily dismissed for gross misconduct.
Mr Garamukanwa appealed, but to no avail. Mr Garamukanwa brought various claims at Tribunal, including, that the Trust had breached Article 8 of the ECHR for failing to respect his right to family and private life.
EMPLOYMENT TRIBUNAL (ET)
The ET dismissed Mr Garamukanwa’s claims, holding that Article 8 of the ECHR was not engaged and therefore not relevant as Mr Garamukanwa’s conduct was causing issues at work. The dismissal was therefore deemed to be fair.
EMPLOYMENT APPEAL TRIBUNAL (EAT)
Mr Garamukanwa appealed to the EAT, again basing his case on the Trust breaching his right under Article 8.
The appeal was dismissed. The EAT held that the right to privacy under Article 8 does extend to protect private communications and even emails sent at work, however, this is only the case where there is a reasonable expectation of privacy. In the case at hand, Mr Garamukanwa’s behaviour afforded no expectation of privacy. The emails he sent were to work addresses of colleagues and left the recipients feeling distressed which, in turn, affected their work. Mr Garamukanwa’s actions in the context of his position as a manager were also considered relevant to the EAT’s decision.
WHAT DOES THIS MEAN FOR YOU?
The EAT decision on this case establishes that private communications and personal affairs may not remain private once brought into the workplace. Further, there cannot be an expectation of protection under Article 8 of ECHR where such material or relationships have an effect on work related matters.
If you have any questions regarding the above, please contact Matthew Kilgannon either by telephone on 01483 411517 or by email: firstname.lastname@example.org or speak to another member of our Employment team.