An employee had no expectation of privacy regarding emails sent to work colleagues
The Employment Appeal Tribunal has held that an employee had no reasonable expectation of privacy in respect of emails sent to a work colleague, with whom he had had a relationship, and photographs on his iPhone.
The Employer in this case Solent NHS Trust, is a public body and as such is required to act within the European Convention on Human Rights and Fundamental Freedoms and the Employer and Tribunal are required to act within the Human Rights Act 1998.
Article 8 of the European Convention on Human Rights and Fundamental Freedoms states that;
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The aspects of private life which come under Article 8 are potentially wide.
It includes private correspondence and communications and could potentially include emails sent at work where there is a reasonable expectation of privacy.
Sometime after he was employed Mr Garamukanwa began a personal relationship with a colleague, Staff nurse Ms Maclean. The Relationship ended in May 2012 and Mr Garamukanwa suspected that Ms Maclean was in a relationship with another more junior colleague Ms Smith.
On 21 June 2012 Mr Garamukanwa emailed a nurse friend of Ms Maclean to raise his concerns about her relationship with a junior member of staff on the same ward. He was concerned that it could cause a conflict of interest. On the 25 June 2012 Mr Garamukanwa emailed Ms Maclean and Ms Smith using their work email. He told them to inform their manager of the relationship or he would do so.
An anonymous letter was also received by Ms Maclean and Ms Smith’s manager, Mr Brown, which made allegations about their behaviour at work. Ms Maclean and Ms Smith denied the allegations or that they were in a relationship. Ms Maclean also reported to Mr Brown that she had felt threatened by Mr Garamukanwa’s email and that she suspected he was behind the anonymous letter.
Mr Brown informed Mr Garamukanwa that his email was inappropriate.
From June 2012 to April 2013 Ms Maclean and Ms Smith were subject of a personal vendetta from an unknown person.
The anonymous person set up fake Facebook account and email addresses purporting to be Ms Smith and Ms Maclean and sent emails to management and colleagues at Solent NHS Trust. There was also some concern that Ms Maclean and Ms Smith were being followed by the anonymous person.
In April 2013 matters came to a head and Ms Maclean made a report to the police, stating that she believed that it was Mr Garamukanwa who had been responsible for the vendetta. The police instigated an investigation and informed Solent NHS Trust that it was their decision how the matter was dealt with internally.
Mr Garamukanwa was suspended from work on the 12 April 2013 and the police arrested him on the 24 April 2013, although no charges were brought against him.
Solent NHS Trust undertook their own investigation and the investigating officer was given evidence obtained by the police including photographs from Mr Garamukanwa’s iPhone of Ms Maclean’s home address and a photo of a notebook which contained the email addressed from which the malicious emails had been sent.
The investigator concluded that there was sufficient evidence to link Mr Garamukanwa to the malicious email accounts relying on the photos from his iPhone.
Mr Garamukanwa was subsequently dismissed for gross misconduct and he made claims for unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal.
At the Employment Tribunal Mr Garamukanwa’s claims were unsuccessful and he appealed.
At the original Employment Tribunal hearing Mr Garamukanwa argued that Solent NHS Trust had acted in breach of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights and Fundamental Freedoms by failing to respect his right to a private life and by examining matters that related purely or essentially to his private life. The evidence used against him to justify his dismissal was related to his private life.
The Employment Appeal Tribunal concluded that the Employment Tribunal had been correct to conclude that the evidence relied upon by Solent NHS Trust was such that Mr Garamukanwa could not have had an expectation of privacy as it clearly strayed into the workplace and was not purely personal. This meant that Article 8 did not apply in this case.
Although not necessary the Appeal Tribunal did go on to say that even if there had been an interference with Mr Garamukanwa’s Article 8 rights it was justified by the need to protect the health and welfare of other employees and to ensure that they could go about their employment free from harassment.
Points to note
The question as to whether an employee will have a reasonable expectation of privacy will depend on the facts and circumstances and employers should bear this in mind.
Although an employee will be unable to argue Article 8 rights against a private employer it is important to keep in mind general principles of employee privacy when undertaking a disciplinary investigation.
It is recommended that if you monitor employee emails and telephone calls that employees are informed of this and that you have a policy in place to cover the boundaries and procedures concerning this.
Action to take
- Ensure that if you undertake an investigation, particularly surrounding serious conduct issues, that you appoint someone to investigate who understands the need to balance privacy and employee rights.
- Implement a policy into your staff handbook to deal with monitoring of employee emails and calls.
- If you are unsure about the implications of this case on your business contact me for a free no-obligation discussion firstname.lastname@example.org
Garamukanwa v Solent NHS Trust – Employment Appeal Tribunal