Legal Corner: Employee not entitled to rely to Right to Privacy in respect of malicious emails

1st Jul 2016

The dividing line between ‘work related’ and ‘private’ matters is often a difficult distinction to draw. This was recently illustrated in Garamukanwa v Solent NHS Trust UKEAT/0245/15/DA.

Mr Garamukanwa was employed as a Clinical Manager. He formed a relationship with a nurse, Ms Maclean. After that relationship ended in May 2012, he suspected that Ms Maclean had formed a relationship with another colleague, Ms Smith. Mr Garamukanwa emailed them both in June 2012 at their work email addresses telling them that unless they informed their manager about their relationship, he would do so himself.

By that time, an anonymous letter had been sent to their manager which raised concerns about them working together. Both Ms Maclean and Ms Smith were spoken to by their manager, however, they denied that they were in a relationship.

From June 2012 to April 2013 various anonymous activities took place which could only be described as malicious; these included setting up a fake Facebook account in the name of Ms Smith to which about 150 work colleagues were added, and anonymous emails sent from various different email addresses to members of the NHS Trust’s management. It appeared from the emails that the author was aware of the personal activities of Ms Maclean and Ms Smith and was most likely following them; many of the emails contained unpleasant personal comments.

As a result of this, Ms Maclean made a complaint to the police, who then conducted an investigated into Mr Garamukanwa. He was suspended during this time. Whilst Mr Garamukanwa was arrested, no charges were subsequently brought against him. However, the NHS trust decided to investigate the issues.

Their appointed investigator met with the police to discuss evidence already provided to Mr Garamukanwa’s line manager. This included a photograph of what appeared to be a sheet from a notebook which contained details of the email addresses from which the malicious emails had been sent. The investigator specifically raised with the police whether the NHS Trust was permitted to use the police evidence in its investigations and it was confirmed that they could.

A detailed investigation report was produced which suggested that whilst there was insufficient evidence to link Mr Garamukanwa to the false Facebook profile, there was enough evidence to link him to some of the email addresses from which the anonymous emails were sent; the key evidence in this regard was the photograph of these email addresses on Mr Garamukanwa’s iPhone for which he could provide no reasonable explanation. Mr Garamukanwa was subsequently charged with, and found guilty of, gross misconduct and was summarily dismissed. His appeal against that decision failed.

Mr Garamukanwa brought claims of unfair dismissal, discrimination, victimisation and harassment against the NHS Trust. In particular, he argued that the NHS Trust had acted in breach of the Human Rights Act 1998 by failing to respect his right to a private life (Article 8) in considering both ‘public’ material, being the emails sent to employees and managers at their work addresses, but also ‘private’ material, specifically the photograph from his phone. Without the ‘private’ material, he argued that there would not have been sufficient information upon which to base a finding of gross misconduct.

The Employment Tribunal, with whom the Employment Appeal Tribunal subsequently agreed, considered first whether Article 8 was engaged, and found that it was not.

They noted that the aspects of private life capable of falling within Article 8 are potentially wide, but whether or not there is an expectation of privacy in an individual case depends upon the facts and circumstances of the case. Here, it was found that Article 8 was not engaged for a number of reasons; this was a disciplinary investigation into matters that, whilst they related to a personal relationship with a workplace colleague, were brought into the workplace by Mr Garamukanwa himself, and were introduced into the workplace as giving rise to work related issues. The emails of particular concern were published to colleagues at work email addresses.

The publication of those emails had an adverse consequence on other employees for whom the NHS Trust had a duty of care, and raised issues of concern so far as the Trust’s own working relationship with Mr Garamukanwa was concerned. Therefore, the NHS Trust acted properly in making no distinction between the public and private material upon which it relied, and therefore the decision to dismiss was fair.

This case demonstrates that where work related issues are involved, it is possible that potentially private material can also be considered as part of any decision. However, an employer will need to clearly consider the reasons for doing so such that any decision can be properly justified if required.

Safia Tharoo, Barrister, 42 Bedford Row, London

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