The EAT has dismissed the appeal in Garamukanwa -v- Solent NHS Trust 2016, holding that there was no reasonable expectation of privacy in a series of emails and photographs passed to the claimant’s employer by the police.
Mr Garamukanwa was employed by the Trust as a Clinical Manager. He had a relationship with a staff nurse, Ms Maclean, which subsequently broke down. He suspected that she had left him for another nurse at the hospital, and sent a series of emails to both nurses, which they found to be threatening. An anonymous individual reported the relationship between the two nurses to their manager, and a series of emails were sent from anonymous addresses to the two nurses and up to 150 other employees working at the hospital. An anonymous Facebook account was also set up. After an incident in which Ms Maclean became concerned that Mr Garamukanwa had been following her, she complained to the police.
Mr Garamukanwa was suspended pending an investigation. The police decided not to take the case any further, but passed relevant evidence to Ms Burton, who was carrying out the investigation for the Trust. This evidence included emails and photographs from Mr Garamukanwa’s personal phone. The police released the material and stated that the Trust was entitled to refer to it during its own investigation. Mr Garamukanwa was subsequently dismissed, and the Tribunal dismissed his claims.
The only point on appeal was whether the Tribunal’s approach to Article 8 of the European Convention on Human Rights had been correct. Article 8 guarantees the right to respect for private and family life. The EAT confirmed that Article 8 was not engaged in this case. Mr Garamukanwa could not have had a reasonable expectation of privacy in respect of the material from his mobile phone, as although it related to a personal relationship with a work colleague, it had been brought into the workplace by Mr Garamukanwa and gave rise to work-related issues. The emails of concern had been sent to work email addresses and had an adverse consequence on other employees of the Trust, as well as on the Trust’s working relationship with Mr Garamukanwa. It was also significant that he had not objected to the use of the material during the Trust’s investigation.
The EAT did not deal with perhaps the more difficult question of whether the police were entitled to pass the material to the employer in the first place, and whether the Trust was right to rely on the material. It would ordinarily be the position that material which is seized as part of a criminal investigation must be released to the individual; the police can only disclose the information to a third party if the owner has consented or if a subpoena has been served.