An employee’s right to privacy – are your emails protected?

One of the most common issues encountered by employers today is whether emails sent by employees are able to be used in disciplinary proceedings against them.  Are they the private property of the employee or can an employer use them as evidence if they have an effect on their employees/the workplace?

In the case of Garamukanwa v Solent NHS Trust, an employer was recently held not to have breached an employee’s right to a private and family life (Article 8 of the European Convention on Human Rights) when they reviewed private information that belonged to the employee on the basis that the information related to work and therefore had a potential impact on the employer.

The Claimant (Mr Garamukanwa) worked as a Clinical Manager for the Respondent (Solent NHS Trust), and had formed a personal relationship with a fellow colleague, Ms Maclean.

Following the breakdown of this relationship, the Claimant then believed that Ms Maclean had started a relationship with another colleague, Ms Smith. Ms Maclean and Ms Smith subsequently received an email from the Claimant in which he advised them that unless they told their manager about their relationship, he would do it himself.

Prior to this an anonymous letter had in fact already been sent to the aforementioned manager (Mr Brown), accusing Ms Maclean and Ms Smith of ‘inappropriate sexual behaviour’ in the workplace.  Mr Brown subsequently raised these concerns with Ms Maclean and Ms Smith, who denied both having a relationship and inappropriate sexual behaviour.  Ms Maclean later advised Mr Brown about the email that herself and Ms Smith had previously received from the Claimant and stated that she felt threatened as a result of this.

Mr Brown therefore informally raised these concerns with the Claimant, who apologised for sending the email but denied being the person who had sent the letter to him.  Ms Maclean and Ms Smith were then the subject of a vendetta which consisted of the sending of malicious emails and photos to management and other members of staff, from various anonymous email addresses.  In addition a fake Facebook profile was set up and around 150 of the Respondent’s employees were added to it.  It later became clear that whoever was responsible for the vendetta was following Ms Maclean and Ms Smith, and Ms Maclean believed that the Claimant was in fact stalking her. 

getting appeals right

In Blackburn v Aldi Stores Ltd the Employment Appeal Tribunal looked at whether a failure to provide an adequate appeal in a grievance procedure could amount to a breach of mutual trust and confidence and thus a constructive dismissal, and concluded that it could.
Mr David Blackburn commenced work with Aldi in 2006 as a light goods vehicle driver. He is a retired police officer and his background was as a vehicle examiner and health and safety trainer. Throughout his employment at Aldi he had concerns about health, safety and training at the depot where he was based. He raised his concerns in particular with Mr Gallivan, the deputy transport manager. It was accepted in evidence that on one occasion Mr Gallivan waved him away, swore at him, said the training was “shit” and told him to “fuck off home”. In fact the depot came out well in audits of vehicle inspection and health and safety.
However there was another flare up with Mr Gallivan in June 2009 and this led to Mr Blackburn raising grievances concerning both Mr Gallivan and a section manager, going back over some time. Normally, under the company’s written procedure, the section manager would have been the person to consider the grievance, but as it concerned him, the next person for it to go to was the logistics manager. But there was no logistics manager – so the regional managing director, Mr Heatherington, dealt with the grievance instead. He met twice with Mr Blackburn, notes were taken and the meetings were recorded. He also spoke with potential witnesses. He reported his findings in detail and upheld the grievance in part. Mr Blackburn was not satisfied and appealed, copying his notice of appeal to the managing director. Remarkably, Mr Heatherington dealt with the appeal himself, holding a brief appeal meeting.
What happened at that meeting was disputed, with Mr Blackburn saying that he was barely permitted to speak and was given a dressing down. Mr Heatherington put forward a rather different version. Mr Blackburn maintains that he was told by Mr Heatherington that his decision was final and he had to accept it. He also alleged that Mr Heatherington had told him that he was anwerable to no-one and that he was in overall charge.
Six days later, Mr Blackburn resigned and started constructive dismissal proceedings. Having started the claim on the basis of a breach of mutual trust and confidence, permission was sought to add an allegation that the grievance procedure had been contractual and there had been a breach of an express term – but this was refused.