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.
The matter was reported to the police who conducted a full investigation and initially arrested the Claimant, although no charges were brought. The Respondent suspended the Claimant during this time and investigated the matter, obtaining further details from the initial police investigation. The evidence obtained included photographs of Ms Maclean’s house found on the Claimant’s mobile phone and a piece of paper from the Claimant’s notebook, which contained details of the email addresses that the malicious emails had been sent from.
On the basis of the evidence obtained from the police investigation the Claimant was dismissed for gross misconduct. He did submit an internal appeal to the Respondent, but was unsuccessful. The Claimant then issued a number of Tribunal claims (including unfair dismissal) and argued that the Respondent was in breach of Article 8 of the European Convention of Human Rights by failing to respect his right to family and private life.
His claims were dismissed at first instance by the Employment Tribunal, and the Claimant later submitted an appeal to the Employment Appeal Tribunal (the EAT). The EAT found that whilst the aspects of private life that could fall into Article 8 were potentially wide and could include private correspondence and communications including emails sent at work where there is an expectation of privacy, whether or not there can be an expectation of privacy in an individual case would depend on the facts and circumstances of that case. In this case the Claimant had brought a personal relationship into the workplace which had then given rise to work-related issues. He could therefore have no reasonable expectation of privacy in respect of these materials.
It should be noted that Article 8 is wide ranging and can apply to emails at work, if the relevant individual has a reasonable expectation of privacy. This case however illustrates the fact that personal relationships, once brought into the workplace, are no longer “private” within the meaning of the ECHR and could be used in disciplinary hearings against employees.