In Garamukanwa v Solent NHS Trust UKEAT/0245/15, the Employment Appeal Tribunal had to decide whether Article 8 (the right to a private life) of the European Convention on Human Rights was engaged when an employer used material during a disciplinary hearing that was found on an employee’s phone and provided to the employer by the police.  

Background

Article 8 of the European Convention on Human Rights (ECHR) provides that everyone has the right to respect for their private and family life, their home and their correspondence. It states that there shall be no interference by a public authority with the exercise of this right, except as accords with the law and as is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

What constitutes a “private life” depends on all the circumstances of the particular case, such as whether the conduct takes place in private premises and, if not, whether it happens in circumstances in which there is a reasonable expectation of privacy for conduct of that kind.

Facts

Mr Garamukanwa (the Claimant) was employed by Solent NHS Trust (the Trust) as a clinical manager. He formed a personal relationship with a colleague, Ms Maclean. When this relationship ended in May 2012, the Claimant suspected that Ms Maclean had started a relationship with Ms Smith, a healthcare support worker on her ward.

The Claimant sent emails to Ms Maclean and Ms Smith at work stating that if they did not inform their manager, Mr Brown, about their relationship, he would do so. By that time, Mr Brown had received an anonymous letter referring to inappropriate sexual behaviour by Ms Maclean and Ms Smith while on night shift. They denied any inappropriate behaviour and also denied being in a relationship. Ms Maclean told Mr Brown that she was distressed and felt threatened by the Claimant’s email and suggested that the letter might have been written by him as well. When Mr Brown spoke to the Claimant he denied sending a letter but apologised for sending the emails, acknowledging that his previous relationship with Ms Maclean was a private matter that should be kept out of the workplace.

The anonymous person then appeared to start a vendetta against Ms Maclean and Ms Smith. Between June 2012 and April 2013 a fake Facebook account was set up and approximately 150 Trust employees were added to the account. Anonymous emails were sent to members of the Trust’s management, including Mr Brown and the Claimant’s manager, Mr Kinsella. It became clear that whoever the anonymous person was, they were aware of the activities of Ms Maclean and Ms Smith and were most likely following them on occasions. Ms Maclean became increasingly concerned that it was in fact the Claimant who was stalking her.

In April 2013 Ms Maclean made a statement to the police to that effect. The Claimant was suspended on full pay. Following a police investigation, the Claimant was arrested but no charges were brought.

The Trust then appointed Ms Burton to carry out an investigation. When she met the police, she was given copies of photographs that the police had found on the Claimant’s mobile phone, which included photos of Ms Maclean’s home and sheets from a notebook containing the email addresses from which some of the malicious emails had been sent. The police advised Ms Burton that the Trust was entitled to use the material they had provided in its investigation. Ms Burton concluded that there was sufficient evidence, from this material, to link the Claimant to certain malicious emails and recommended that he should be subject to disciplinary proceedings. Following a disciplinary hearing, the Claimant was dismissed without notice for gross misconduct. The main reason for his dismissal was the reliance on the photographs supplied by the police, which had been found on the Claimant’s phone. The Claimant appealed internally but was unsuccessful. He then brought a number of employment tribunal (ET) claims, arguing that the Trust had breached Article 8 of the ECHR by failing to respect his right to private and family life.

Employment tribunal decision

The ET held that Article 8 had not been engaged because the conduct of the person who sent the anonymous emails had an impact, or potential impact, on work related matters and accordingly the employment relationship between that person and the Trust as their employer. They also found that the emails were sent to work addresses and dealt (at least in part) with work related matters. The impact on Ms Maclean and Ms Smith affected their emotional stability and caused distress to an extent that could adversely affect their performance at work. The Trust was properly concerned that if the Claimant was responsible for sending the emails, it would raise questions about the requirement for him to behave in an appropriate manner, having regard to his senior position and the fact that he was subject to professional standards. The ET dismissed his claims and found that the decision to dismiss him was within the range of reasonable responses open to an employer and was therefore fair. The Claimant appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal decision

The Claimant argued that while the police had a right as part of a criminal investigation to look at his private emails, the Trust had no such right. When it obtained material from the police, the Trust had failed to consider and address the distinction between public material (such as the anonymous email sent to the Trust’s staff and members) and the private material (such as emails he had sent to his former girlfriend about his private feelings on their relationship and the photographs on his mobile phone, which were not sent to anyone). He argued that he had a reasonable expectation that the private material would remain private and Article 8 was accordingly engaged.

In dismissing the appeal, the EAT noted that the aspects of private life capable of falling within Article 8 are potentially wide. They extend to private correspondence and communications including, potentially, emails sent at work where there is a reasonable expectation of privacy. Whether or not there is an expectation of privacy in an individual case must, however, depend on the facts and circumstances of each case.

The EAT held that the ET had been entitled to conclude that Article 8 was not engaged because the Claimant had no reasonable expectation of privacy in respect of what he termed the private material. The ET was considering a disciplinary investigation into matters that, while relating to a personal relationship with a work colleague, had been brought into the workplace by the Claimant as giving rise to work related issues. The emails of particular concern were sent to work email addresses, had an adverse consequence for other employees to whom the Trust had a duty of care, and raised issues of concern so far as the Trust’s working relationship with the Claimant, or the individual responsible, was concerned. The ET had been entitled to take the approach of not separating out the material as the Claimant had argued it should. No such distinction had been made by the police, who had provided and given the Trust permission to use all the material from its criminal investigation.

Also, on the facts, once Ms Maclean had reported to Mr Brown her distress caused by the Claimant’s email and Mr Brown had spoken to him, it was difficult to see how the Claimant could have any further expectation of privacy when sending her emails even if they were sent to her private email address and even if they referred to their former relationship. From that time on, he must have anticipated that she would complain of feeling harassed by his ongoing correspondence with her, and he could have had no expectation of controlling when and where she complained or what she did with emails sent to her. In any event, the content of the emails sent to Ms Maclean’s private email address had not been purely personal but had also touched on workplace issues.

Comment

This case demonstrates that personal/private relationships, once brought into the workplace, are no longer “private” within the meaning of the ECHR and could potentially be used in disciplinary and grievance hearings.

It is important to note that this case focused only on whether Article 8 was engaged – this was the only ground on which the Claimant was permitted to appeal. It does not address the issue of whether the police were entitled to pass the information to the Trust in the first place. The general position is that where the police have lawfully seized property under the Police and Criminal Evidence Act they can retain it for as long as necessary. When the decision was made not to prosecute, this material should have been returned to the Claimant. Material seized by the police should not be disclosed to a third party unless the owner consents or the police are served with a subpoena.

The decision raises questions such as whether the police should pass material to an employer following a criminal investigation and whether the employer should be allowed to rely on it, neither of which was addressed in this case.