In Garamukanwa v. Solent NHS Trust , the EAT has upheld a finding that Article 8 of the European Convention on Human Rights was not engaged where an employer had used material during a disciplinary hearing that was found on the employee's phone and provided to the employer by the police.
Mr Garamukanwa was employed by Solent NHS Trust (Solent) as a clinical manager. He formed a relationship with a staff nurse (Ms Maclean) but, when that relationship ended, he suspected that Ms Maclean was having a relationship with another colleague, a healthcare support worker.
Mr Garamukanwa sent a series of malicious emails to Ms Maclean and another employee, stating that if they did not inform their manager of their relationship, he would do so. Ms Maclean reported Mr Garamukanwa to Solent's management but, by this time, they had also received an anonymous letter referring to alleged inappropriate sexual behaviour. Mr Garamukanwa denied sending the anonymous letter but apologised for sending the emails.
From this moment onwards, the anonymous person appeared to start a vendetta against Ms Maclean. This included a fake Facebook account being set up, and approximately 150 Solent employees were added to the account. Further anonymous emails were also sent to Solent's management.
Ms Maclean was increasingly concerned regarding these actions and she suspected that Mr Garamukanwa was behind them. Ms Maclean made a statement to the police and, although Mr Garamukanwa was arrested, no charges were brought.
Solent subsequently investigated Mr Garamukanwa's alleged actions and concluded that his mobile phone linked him to the anonymous email. Mr Garamukanwa was then dismissed for gross misconduct.
The EAT were required to consider whether Article 8 of the European Convention of Human Rights was engaged meaning that Solent had no right to review Mr Garamukanwa's private emails.
The EAT agreed with the decision of the employment tribunal in finding that the aspects of private life capable of falling within the scope of Article 8 are potentially wide and could include emails sent at work. However, this would only be the case where there is a reasonable expectation of privacy.
Whether there is an expectation of privacy will depend on the facts in each case but it was found here that there was no such reasonable expectation. The tribunal had found, and the EAT agreed, that the communications had been brought into the workplace by Mr Garamukanwa and had given rise to work-related issues. The emails had been sent to work email addresses and had adverse consequences for other members of staff.
This case is fact specific but the employment tribunal was entitled to find that Mr Garamukanwa had no reasonable expectation of privacy. Although the aspects of private life capable of falling within Article 8 are wide, Mr Garamukanwa had turned a private issue into a workplace issue through his conduct.
The EAT was not required to deal with whether the material should have been passed to Solent by the police in the first place. The general position is that any material obtained by the police should have been returned to Mr Garamukanwa if a decision was made not to prosecute. It follows that information should not then be provided to a third party, but this issue was not addressed in this case.