29 April 2016 #Employment
In the recent case of Garamukanwa v Solent NHS Trust an employer was held not to have breached an employee’s right to a private and family life (under Article 8 of the European Convention on Human Rights) when it reviewed private material belonging to the employee on the basis that the information related to work issues and had a potential impact on work.
The Claimant was a clinical manager for the Solent NHS Trust who had formed a personal relationship with a colleague, Ms Maclean. Following the breakdown of that relationship, the Claimant believed that Ms Maclean had formed a personal relationship with another colleague, Ms Smith. Ms Maclean and Ms Smith were then the subject of a vendetta which included the sending of malicious emails and photographs to management and other members of staff from various unrecognised email addresses.
Ms Maclean believed the Claimant was responsible and reported events to the police. Once the police had concluded their investigations they gave the evidence they had collated to the Trust for use in their internal disciplinary investigation. This evidence included photographs found on the Claimant’s personal iPhone. The Claimant was subsequently dismissed for gross misconduct. He brought a claim for unfair dismissal and asserted that viewing private material seized by the police was a breach of Article 8. His claims were dismissed by the Employment Tribunal.
On appeal, the Employment Appeal Tribunal (agreeing with the Tribunal) said that whilst the issues may have related to personal relationships, the Claimant had brought these into the workplace. He had sent emails to colleagues at work email addresses and “the publication of those emails had an adverse consequence on other employees for whom the Respondent had a duty of care”. The Claimant could not have had an expectation of privacy and, as such, Article 8 was not engaged. Further, the material from the police could be viewed as a whole and the employer did not need to separate out (and disregard) private material (e.g. the iPhone photographs). It was expressly recognised that the police had made no such distinction when handing over the information and had given the Trust permission to use all of the information.
The right to a private and family life is wide ranging and is capable of applying to emails at work, provided the individual concerned has a ‘reasonable expectation’ of privacy. However, this case is part of an emerging trend demonstrating the difficulties individuals face when attempting to rely on Article 8 in a work context. Earlier this year we commented on the European case of Barbulescu v Romania which ruled that Article 8 would not be infringed if an employer’s monitoring of emails was reasonable and proportionate. In Barbulescu the Claimant was checking his personal emails during working time. Interestingly, the question of when the emails were sent did not arise in the present case; it was simply sufficient that there was a work-related connection.