Garamukanwa v Solent NHS Trust UKEAT/0245/15/DA
Article 8 of the European Convention on Human Rights (ECHR) states that everyone has the right to respect for their private and family life, their home and their correspondence, and that no public authority shall interfere with this right other than in accordance with the law, and as necessary in a democratic society in the interests of national security, public safety, national economic well-being, for the prevention of disorder or crime, the protection of health or morals, or the protection of the rights and freedoms of others.
In X v Y, a Court of Appeal case which held that that an employee of a charity working with young offenders was fairly dismissed when a police caution for sex in public toilets was brought to his employer’s attention, the Court held that “What is ‘private life’ depends on all the circumstances of the particular case, such as whether the conduct is in private premises and, if not, whether it happens in circumstances where there is a reasonable expectation of privacy for conduct of that kind. The individual wanting a matter to be kept private “does not make it part of his private life or deprive it of its public aspect”.
In Barbulescu v Romania, the European Court of Human Rights ruled that an employee’s human rights were not breached when his employer viewed private messages on a work-related Yahoo Messenger account as part of a disciplinary investigation.
In this case, the EAT was asked to consider whether Article 8 applied to private emails and photographs on a mobile phone discovered by the police in the course of a criminal investigation, and later disclosed to an employer for use in disciplinary proceedings.
The Claimant formed a relationship with a colleague, LM, which ended in May 2012. The Claimant suspected that after the relationship ended she had formed a relationship with DS, who also worked for the Respondent. Shortly afterwards, Mr Brown (LM and DS’ manager) received an anonymous letter alleging that the writer (allegedly “a concerned member of staff”) “witnessed some inappropriate sexual behaviour between the two, during their break recently”. LM and DS denied that they were in a relationship and LM suggested to Mr Brown that the Claimant might be responsible. Mr Brown then spoke informally to him told him it was inappropriate. However, the Claimant then emailed LM and DS at their work email addresses and told them that unless they told their manager about their relationship, he would do so.
Between June 2012 and April 2013, a fake Facebook account in the name of DS was set up, and 150 colleagues added as friends, and a number of anonymous malicious emails (from accounts including a variant of DS’ name, “katieprice” and “notflorencenightingale”) were sent to Mr Kinsella (the Claimant’s manager), Mr Brown and others with the effect of distressing LM and causing concern and disruption to management. The emails’ contents revealed that the anonymous sender was aware of LM and DS’ personal activities and most likely following them. Meanwhile, LM became concerned that the Claimant was stalking her.
Eventually, another email from the “katieprice” account sent to a large number of number of workers led LM to report the matter to the police and to make a witness statement. PC Burns told the Respondent that an investigation was under way but although the Claimant was arrested, no formal charges were ever brought. The Respondent suspended the Claimant and the police provided Mrs Burton, who carried out the Respondent’s internal investigation, with the evidence they had obtained, including a copy of LM’s statement and photos found on the Claimant’s phone of details of the anonymous email addresses, and a photo of LM’s home. The police confirmed that Mrs Burton could use this evidence in her own investigation.
The Claimant was subsequently dismissed for gross misconduct, principally in reliance on the photographs on the iPhone. His appeal was not upheld.
Before the tribunal, the Claimant argued that Article 8 had been breached in using evidence in relation to his private life to dismiss him. The tribunal did not agree that Article 8 had been engaged.
At the EAT, the Claimant argued that the Respondent had no right to look at the his private emails and the Respondent should have drawn a distinction between the evidence provided by the police which was public material (for example, the email sent to staff and managers) and the private material (such as emails he had sent to LM and the photographs on his iPhone).
The EAT held that the tribunal was entitled to hold that Article 8 was not engaged, because the Claimant had no reasonable expectation of privacy in respect of the private material. The disciplinary investigation was into matters that had been brought into the workplace by the Claimant, notwithstanding that they had begun as a personal relationship with a colleague. The emails had been sent to work colleagues, to whom the Respondent also owed a duty of care. On the facts, the Claimant could not reasonably have any expectation of privacy concerning his emails to LM once she had reported her distress at receiving them to Mr Brown, who had warned the Claimant to stop.
The EAT agreed that it was not required to separate out the material into “public” and “private” matters as the Claimant argued. The police had not drawn this distinction and given the Respondent permission to use all the evidence. The EAT also considered it relevant that the Claimant had not drawn any distinction between the types of materials, or objected to the evidence being used, during the investigation, disciplinary or appeal procedures.
What to take away
It seems that the tribunals are unwilling to engage Article 8 where personal correspondence or other items are brought into the employment sphere as a consequence of the individual’s own conduct.
The police were perhaps unusually involved with the employer and its internal processes in this case. A PC Burns advised the employer that “it was a matter for the Respondent to decide whether or not to suspend the Claimant, but any decision not to so may have to be justified in due course.” Unsurprisingly, the employer chose to suspend. Later, Mrs Burton met DC Ryan to discuss evidence given by the police to the Respondent, including the photographs found on the Claimant’s iPhone, a copy of a witness statement by LM and a record of the interview with the Claimant. She asked specifically whether the Respondent could use this evidence and DC Ryan spoke to the police solicitor before confirming that it could.
However, the EAT does not answer whether the police were entitled to pass information from their investigation to the employer. No criminal charges were brought against the Claimant here, but according to the CPS,
“the presumption of innocence can only be undermined if the CPS or the police were to release evidence enabling individuals to trawl through it to determine why the person was suspected in the first place…”
The Police and Criminal Evidence Act 1984 and case law mean that material seized by the police in the course of investigating a crime should not be disclosed to a third party unless the owner has consented, or there has been an order for its disclosure (and even if an order has been served, the police should not disclose the documents unless they have given the true owner notice, expressed a wish to produce the seized documents before the court hearing, and given the owner a reasonable opportunity to object).
Whilst it is unclear whether the police acted correctly, having done so the EAT said the employer did not have to separate out the material it could not otherwise have obtained in coming to its decision, as the police had expressly given permission to use all the evidence from the criminal investigation. This seems sensible – how realistic is it to expect an employer to disregard relevant information, once they have become aware of it?