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Employment Law

Legal guidance - compliance - software

06 MAY 2016

Did an employee have a reasonable expectation of privacy in malicious emails sent to a work colleague?

Did an employee have a reasonable expectation of privacy in malicious emails sent to a work colleague?
Mark Stevens
Associate, Veale Wasbrough Vizards

'No,' said the Employment Appeal Tribunal (EAT) in Garamukanwa v Solent NHS Trust.

The employee had argued that his employer's reliance on private material provided to them by the police breached his rights under Article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life, home and his correspondence. The EAT, however, upheld an employment tribunal's (ET) decision that Article 8 of the ECHR was not engaged in this case.

The Facts

Mr Garamukanwa worked for the Solent NHS Trust (the Trust) and formed a personal relationship with a colleague, Staff Nurse Lauran Maclean. After Ms Maclean ended the relationship, Mr Garamukanwa suspected that she had started a relationship with another colleague, Ms Smith, and (it was alleged by the trust) began a vendetta against them both.

After Mr Garamukanwa emailed the women threatening to tell their manager about their relationship, an anonymous letter was received by the employees' manager complaining of their relationship. A fake Facebook account was then set up in Ms Smith's name and anonymous, malicious emails were sent from various bogus email addresses to members of the Trust's management. The content of the emails suggested the author had been following Ms Maclean and Ms Smith.

Ms Maclean complained to the police, who arrested Mr Garamukanwa but no charges were brought.

The Trust suspended Mr Garamukanwa and investigated the matter. During the investigation, the Trust met with the police who provided copies of photographs found on Mr Garamukanwa's mobile telephone and information from a notebook which linked him to the malicious emails.

The police told the Trust that it was entitled to use the evidence that they had obtained in the Trust's investigation and, following a disciplinary hearing, Mr Garamukanwa was dismissed for gross misconduct.

Mr Garamukanwa pursued claims for unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal. He also advanced the argument that the Trust had breached Article 8 of the ECHR by failing to respect his right to a private life.

The tribunals' decisions

The ET dismissed his claims. The EAT was then called to consider the ET's findings in relation to Article 8. The EAT upheld the ET's decision, concluding that Article 8 was not engaged in this case. It determined that the malicious emails:

  • were sent to colleagues at work email addresses;
  • had an adverse consequence on other employees for whom the Trust has a duty of care; and
  • raised issues of concern as far as the Trust's working relationship with Mr Garamukanwa was concerned.
The EAT determined that the features above entitled the ET to conclude that Article 8 was not engaged and was therefore not relevant because Mr Garamukanwa had no reasonable expectation of privacy.

Best practice

Care should be exercised in using information provided by the police. Privacy issues and rights under Article 8 of the ECHR will depend on the facts and circumstances of each case.

As a a general point, where an employee is the subject of criminal proceedings, it may be appropriate for an employer to liaise with the police in order to seek evidence. Employers should exercise caution, however, when dealing with personal and private material. When speaking with police, employers may also seek to influence bail conditions. This might apply in cases where restrictions on the accused contacting colleagues or, in the case of schools, pupils should form part of the bail conditions.
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