In the recent case of Garamukanwa v Solent NHS Trust the UK Employment Appeal Tribunal ("EAT") held that the Claimant, Mr Garamukanwa, had no reasonable expectation of privacy in respect of emails sent to a work colleague with whom he previously had a personal relationship or of photographs discovered on his iPhone by the Police as part of a criminal investigation into his conduct.
Mr Garamukanwa was employed by Solent NHS Trust (the “Trust”) as a clinical manager. He formed a personal relationship with a staff nurse, Ms Maclean, which ended in May 2012. Following the breakdown of this relationship Mr Garamukanwa became suspicious that Ms Maclean was having a personal relationship with another colleague, Ms Smith who was a healthcare worker. Mr Garamukanwa emailed both Ms Maclean and Ms Smith indicating that, if they did not inform their manager about the relationship, he would do so himself. An anonymous letter was then sent to their manager Mr Brown alleging inappropriate sexual behaviour at work. When questioned by Mr Brown, Ms Maclean and Ms Smith denied being in a relationship and suggested that Mr Garamukanwa might have sent the anonymous letter. Mr Garamukanwa denied this but apologised about the emails he had sent to Ms Maclean.
Following this, a number of anonymous emails were sent from various different email addresses (including, for example, “deesmith”, “katieprice” and “notflorencenightingale”) to members of the Trust’s management. In the subsequent employment tribunal case, the tribunal found that the emails were malicious in nature and content and were designed to, or at least had the effect of causing distress to Ms Maclean and Ms Smith. The content of some of the emails also suggested that the author had likely been following Ms Maclean and Ms Smith. After an email containing particularly unpleasant personal comments was sent from the “katieprice” email address to a large number of Trust staff members, Ms Maclean made a complaint to the Police.
Mr Garamukanwa was arrested but no charges were brought. Mr Garamukanwa was also suspended from work on full pay. The investigating officer from the Trust met with the Police to discuss the case. The Police provided the Trust with evidence which they had collected and which included photographs found on Mr Garamukanwa’s iPhone. These included photographs of Ms Maclean’s home and of a sheet of paper containing the email addresses from which some of the malicious emails were sent. The Police confirmed that the Trust was permitted to rely on the evidence collected in its investigation. Following its investigation the Trust was satisfied that there was sufficient evidence to link Mr Garamukanwa to the emails sent from the “katieprice” and “deesmith” email addresses, the key piece of evidence being the photographs found on his iPhone, and he was dismissed for gross misconduct.
Mr Garamukanwa appealed internally against his dismissal but was unsuccessful. He then brought claims for unfair dismissal, unlawful race discrimination, victimisation, harassment, and wrongful dismissal.
The employment tribunal dismissed all Mr Garamukanwa’s claims. The tribunal also dismissed the argument that the Trust had breached Mr Garamukanwa’s right to a private life under Article 8 of the European Convention on Human Rights (“ECHR”) by examining matters that related entirely to his private life.
The tribunal concluded that Mr Garamukanwa had no reasonable expectation of privacy for the following reasons:
- The conduct of the person who sent the anonymous emails had an impact or potential impact on work related matters.
- The emails were sent to the work addresses of the recipients and dealt at least in part with work related matters.
- The impact on Ms Maclean and Ms Smith was such that it was likely to and did affect their emotional stability and cause distress to an extent that it could have an adverse effect on their work.
- If it was Mr Garamukanwa that sent the emails, the Trust would have concerns regarding the duty of Mr Garamukanwa to behave in an appropriate manner, given his senior position and the fact that he was subject to professional standards.
Mr Garamukanwa subsequently appealed to the EAT.
The EAT noted that the aspects of an individual’s private life which are capable of failing within the protection of Article 8 are potentially wide and extend to private correspondence and communications including, potentially, emails sent at work where there is a reasonable expectation of privacy. However, it also made the point that whether or not there is an expectation of privacy in an individual case depends upon the facts and circumstances of the particular case.
In this case, the EAT recognised that, whilst the issues which gave rise to this dispute related to a personal relationship with a work colleague, they were brought into the workplace by Mr Garamukanwa. The emails were sent to work addresses, had an adverse impact on other employees for whom the Trust had a duty of care and raised issues of concern regarding the Trust’s own working relationship with Mr Garamukanwa (or the individual responsible). Taking these factors into account the EAT found that the tribunal was entitled to conclude that Mr Garamukanwa had no reasonable expectation of privacy so could not argue the Article 8 right in his defence.
In reaching this conclusion the EAT also noted the following points:
- The tribunal was not required to draw a distinction between public material (such as the anonymous emails sent to Trust staff) and private material (such as the photographs on Mr Garamukanwa’s mobile phone).
- Mr Garamukanwa had not objected to the use of any of the material during the Trust’s internal investigation or the disciplinary proceedings.
- Once Ms Maclean complained to her manager that she felt harassed by Mr Garamukanwa’s emails, it is difficult to see how he could have any further expectation of privacy in relation to emails sent to Ms Maclean. He must have anticipated she would complain about any further communications.
- The content of the emails to Ms Maclean was not purely personal and instead touched on workplace issues.
Individuals have a right to privacy in respect of private correspondence and communications. However, this case is a reminder that this right may not, depending on the circumstances, extend to communications sent using a work email address or otherwise brought into or relating to the workplace. Nonetheless, in order to seek to ensure that employees use work email addresses responsibly, and to reduce the risk of disputes of this sort, it is advisable for employers to have an Email and Communication Policy which explicitly states that employees have no expectation of privacy over emails sent using their work email address and that emails may be monitored.
For the full judgment please click here.