The Employment Appeal Tribunal (EAT) considered whether or not material found on an employee’s phone which had been seized by the police during the course of a criminal investigation could be used against that employee for disciplinary purposes.
Garamukanwa v Solent NHS Trust
Mr Garamukanwa (the Claimant) was employed by Solent NHS Trust (the Trust) as a Clinical Manager. The Claimant had formed a personal relationship with a colleague, Lauren Maclean but this relationship had come to an end in May 2012.
Following the breakdown of this relationship, the Claimant suspected that Ms Maclean had entered into a relationship with another colleague, Debbie Smith. On June 2012 the Claimant emailed both Ms Maclean and Ms Smith raising their alleged relationship and telling them that unless they informed their manager about their relationship he would do so himself. By that time, an anonymous letter had already been sent to the manager on 16 June 2012 (Mr Brown) which predated the Claimant’s email. The letter purported to come from a concerned member of staff and accused Ms Maclean and Ms Smith of “inappropriate sexual behaviour” whilst on nightshift.
Mr Brown subsequently spoke to Ms Maclean and Ms Smith who denied any inappropriate behaviour and denied any relationship whatsoever. Ms Maclean suggested that it was the Claimant who had sent the anonymous letter given their history and that she had recently ended their relationship. Ms Maclean then approached Mr Brown regarding the email she had received from the Claimant expressing her distress and saying that she felt threatened. Mr Brown spoke to the Claimant in relation to the email on an informal basis. The Claimant acknowledged that that the email may have been inappropriate, apologised and agreed that his previous relationship with Ms Maclean was a private matter that should be kept out of the workplace. Mr Brown also showed the Claimant the anonymous letter he had received on the 16 June, the Claimant denied writing it.
Thereafter, the anonymous person appeared to have developed a vendetta against Ms Maclean and Ms Smith and over the period between June 2012 and April 2013 the situation developed. A fake Facebook profile was set up and approximately 150 employees of the Trust were added to it. Anonymous, malicious emails were sent to members of the Trust’s management team and 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.
On April 11 2013 Ms Maclean made a statement to the police to that affect. The matter was investigated by the police who were concerned about the Claimant’s alleged behaviour. The Trust was notified about the investigation by the police and the Claimant was suspended. The Claimant was arrested on 24 April 2013 but no charges were brought.
The Trust decided to investigate the issues and appointed Ms Burton to carry out the investigation. Ms Burton met with the police and was given copies of photographs the police had found on the Claimant’s phone which included photos of Ms Maclean’s home address and a sheet from a notebook which contained details of the email address from which the malicious emails had been sent. The police advised Ms Burton that the Trust could use the material they had provided her with in its own investigation.
Consequently, the Claimant was summarily dismissed for gross misconduct. The main reason for his dismissal being the reliance of the photographs supplied by the police which had been found on the Claimant’s phone. The Claimant appealed internally but it was unsuccessful.
The Claimant brought a number of tribunal claims, arguing that the Trust had breached Article 8 of the European Convention of Human Rights (ECHR) by failing to respect his right to family and private life.
The Employment Tribunal (ET)
The ET found that Article 8 was not engaged because the Claimant’s actions and conduct had had an impact on work-related matters and accordingly the employment relationship between the Claimant and the Trust. They also found that that the emails the Claimant sent had been sent to work email addresses and concerned in part, work related matters making them not part of the Claimant’s private life.
Therefore the ET dismissed the claims and found that the decision to dismiss the Claimant was within the range of reasonable responses of a reasonable employer and was therefore fair. The Claimant appealed.
The Employment Appeal Tribunal (EAT)
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. The EAT maintained that whether or not there is an expectation of privacy in an individual case must depend upon the facts and circumstances of that case.
The Claimant had brought a personal relationship into the workplace which had subsequently given rise to work related issues. Therefore, the Claimant had no reasonable expectation of privacy in respect of private material.
The appeal was dismissed.
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.
However, the case is unusual on its facts, in particular, the EAT did not consider whether it was appropriate for the police to instruct the Trust that it could use the material they had gathered as part of a criminal investigation – information that the Trust would otherwise not have access to.
If you have any queries relating to Article 8 and the right to privacy in relation to employment please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.