Article 8 of the European Convention on Human Rights (ECHR) provides the right to respect for one's "private and family life, his home and his correspondence".
In the case of Garamukamwa v Solent NHS Trust (Unfair Dismissal) [2016] UKEAT 0245_15_0103, the issue to be decided by the Employment Appeal Tribunal was whether investigation of an employees’ emails to a work colleague engaged Article 8 ECHR.
The Facts:
The claimant in the case was Mr Garamukamwa, a clinical manager for Solent NHS Trust. He formed a personal relationship with a staff nurse within the Trust, Ms Maclean. The relationship ended in May 2012. The claimant suspected that Ms Maclean had formed a relationship with a female healthcare support worker, Ms Smith.
The claimant felt that the relationship was not in the interests of the patients on the ward.
On 21st June 2012, the claimant emailed a friend of Ms Maclean, raising concerns about the relationship. On 25th June 2012, the claimant then sent an email to Ms Maclean and Ms Smith (to their work email addresses) raising concerns about their alleged relationship. The email stated that unless they informed their manager of their relationship, he would do so himself.
An anonymous letter was then sent to the manager, Ms Brown, dated 15th June 2012. At first instance, the tribunal found that this letter included the following:
“I am increasingly concerned when I see that Lauren and Debbie are on a nightshift together. I witnessed some inappropriate sexual behaviour between the two, during their break recently. I have been stressed out and feel uncomfortable, when I have to work with them” (paragraph 4, [2016] UKEAT 0245_15_0103)
The manager then spoke with Ms Maclean and Ms Smith, who denied any inappropriate conduct and denied being in a relationship in any event.
Ms Maclean suggested that the claimant may have been the author of the anonymous letter, as she had recently ended her relationship with him.
After receiving the email on 25th June 2012, Ms Maclean approached the manager, expressing her distress about the email. She stated to her manager that she felt threatened by the email.
The manager spoke with the claimant informally at this time, who apologised for sending the email, but denied writing the letter.
During the period June 2012 to April 2013, an anonymous “vendetta” (paragraph 6 [2016] UKEAT 0245_15_0103) began against Ms Maclean and Ms Smith. This included numerous emails being sent from bogus email addresses set up in various names.
At first instance, the Employment Tribunal held in relation to these emails:
“…there is no doubt, not contested on behalf of the Claimant, that the e-mails 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 as well as concern and disruption to management…” (paragraph 6 [2016] UKEAT 0245_15_0103).
It was also clear from the content of the emails that the author was clearly aware of the personal activities of Ms Maclean and Ms Smith and was most likely following them on occasions. Ms Maclean was concerned that the claimant had been harassing and stalking her. Ms Maclean subsequently contacted the police, and an investigation was undertaken.
The Investigating Officer, PC Burns, advised the respondent that it was a matter for the respondent to investigate whether to suspend the claimant from his employment. The claimant was subsequently suspended pending investigation.
A Ms Burton undertook an investigation on behalf of the respondent. The tribunal found at first instance that:
“Of special importance… she was provided with copies of photographs found by the police on the Claimant’s iPhone which included a photograph of what appeared to be a sheet from a notebook which actually contained details of the e-mail addresses from which the malicious e-mails referred to above had been sent” (paragraph 9 [2016] UKEAT 0245_15_0103)
The respondent decided that the claimant was responsible for the sending of the anonymous emails, basing this decision on the photographs found on the claimant’s iPhone.
The respondent concluded that the claimant’s conduct amounted to gross misconduct, dismissing him from his employment.
The claimant issued a claim in the Employment Tribunal, claiming unfair dismissal, unlawful race discrimination, harassment and wrongful dismissal.
As part of his claims, the claimant argued that the respondent had failed to have due regard to his right to privacy by investigating matters that related solely to his private life.
At first instance:
The Employment Tribunal held that Article 8 was not engaged, and thus was not breached by the respondent.
The reasoning of the tribunal was that the e-mails had an impact or potential impact on work related matters, and as such, were not purely private. The e-mails were also sent to the work addresses of the recipients. In addition, the e-mails were likely to have an adverse effect upon work.
The Employment Tribunal concluded that the claimant had no reasonable expectation of privacy in relation to the e-mails, and to the photographs on his iPhone.
All of the claimant’s claims failed and were dismissed by the tribunal.
The Appeal:
The claimant issued an appeal to the Employment Appeal Tribunal. The basis of the appeal was that the Employment Tribunal had not dealt properly with the Article 8 issue.
The Employment Appeal Tribunal took guidance from the case of X v Y [2004] ICR 1634 (Court of Appeal). The first question to always be asked is whether the circumstances of the dismissal fall within the convention right i.e. is Article 8 engaged?
The scope of Article 8 is very wide, and protects privacy in relation to private correspondence (and therefore potentially emails sent at work, where there is a reasonable expectation of privacy).
However, in this case, the e-mails had impacted upon work related matters and the e-mails were sent to the work addresses of the recipients. The e-mails had also distressed work colleagues, and this had the potential to affect their work.
The Employment Appeal Tribunal therefore held that in this case, Article 8 was not engaged. The respondent was right to examine the e-mail correspondence and photograph part of its investigation into the claimant’s judgement as a manager.
The claimant had no reasonable expectation of privacy in relation to the communications in this case.
The claimant’s appeal was therefore dismissed.
It is important to bear in mind that both the respondent in this case and the Employment Tribunal are public bodies, and as such, are required to act in accordance with the ECHR.
By trainee solicitor, Sophie Maloney
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