No breach of Article 8
Labour & European Law Review Weekly Issue 473 08 June 2016
Article 8 of the European Convention on Human Rights gives everyone the right to “respect for his private and family life, his home and his correspondence”. In Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal (EAT) held that Article 8 did not apply where an employer relied on personal e-mails and photographs stored on an employee’s iPhone obtained from the police when dismissing them.
Mr Garamukanwa was a clinical manager for the Trust. After his relationship with staff nurse Lauren Maclean ended, he suspected that she had started a relationship with a female colleague, Debbie Smith. He e-mailed them both at their work address on 25 June 2012 saying that they must tell their manager about their relationship or he would do so. Ms Maclean complained to her manager Mr Brown.
By then an anonymous letter had been sent to Mr Brown dated 16 June alleging that the two women were engaging in sexual behaviour on the ward where they worked. Mr Garamukanwa denied writing the letter but apologised for the e-mail that he had sent them on 25 June.
A fake Facebook address was then set up in the name of Debbie Smith to which the names of approximately 150 work colleagues were added. In addition anonymous emails were sent from various different email addresses to various managers. Another email was sent on 11 April 2013 to a large number of staff including Ms Maclean, Ms Smith and Mr Brown which contained unpleasant personal comments.
Following this email Ms Maclean went to the police to complain. Although the matter was investigated no charges were brought against Mr Garamukanwa. At that point, however, the Trust suspended him. Its investigating officer then met with the police to discuss their evidence and was given photos from Mr Garamukanwa’s iPhone of Ms Maclean’s home address and a sheet containing the email addresses from which the emails had been sent. The Trust relied on this evidence to find that Mr Garamukanwa was responsible for the malicious e-mails and dismissed him for gross misconduct.
He brought claims of unfair and wrongful dismissal.
Holding that the Trust was entitled to conclude, on the balance of probabilities, that Mr Garamukanwa was responsible for at least some of the e-mails, the tribunal held that the decision to dismiss was within the range of reasonable responses for a reasonable employer and was therefore fair. It also held that the evidence justified a conclusion that Mr Garamukanwa was guilty of gross misconduct so that the wrongful dismissal claim also failed.
During the course of the hearing, Mr Garamukanwa advanced the argument that the Trust had breached his right to a private life under Article 8 by making use of material in a disciplinary hearing that had been seized by the police in the course of a criminal investigation and which essentially related to his private life. The tribunal, however, held that Article 8 was not engaged because the the anonymous emails had an impact on work related matters, the emails were sent to work addresses and they had caused Ms Maclean and Ms Smith distress which could affect their performance at work
Mr Garamukanwa appealed, arguing that the tribunal had failed to distinguish between public material (the anonymous e-mails) and the private material which he had directly e-mailed to his former girlfriend about his private feelings and their relationship including the photographs on his phone which he did not send to anyone else.
The EAT, however, disagreed. The disciplinary investigation focused on matters relating to a personal relationship with a workplace colleague and had been brought into the workplace by Mr Garamukanwa. The emails were also sent to workplace email addresses. In the circumstances, the tribunal was entitled to treat all the material in the same way.
The EAT also took into account the fact that Mr Garamukanwa did not object to the material being used in the investigation or disciplinary hearing. Furthermore, the EAT failed to see how Mr Garamukanwa could have a reasonable expectation of privacy after Ms Maclean complained to her manager on 25 June as he had no control over what she did with his emails. These were all features that entitled the tribunal to conclude that Article 8 was not engaged.
The EAT in this case did not consider whether the police were entitled to pass on information from a criminal investigation to the employer in circumstances where no charges were brought.