EMPLOYMENT LAWYER TRURO: Can employees expect privacy in malicious emails sent to colleagues?

In Garamukanwa v Solent NHS Trust, the employee 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 – the right to respect for private and family life, home and his correspondence. The EAT, however, upheld an employment tribunal’s  decision that Article 8 of the ECHR was not engaged in this case.

The Facts

Mr Garamukanwa worked for the Solent NHS Trust  and formed a personal relationship with a colleague, a Staff Nurse who ended ended the relationship.

He suspected that she had started a relationship with another colleague, Ms Smith, and so began a vendetta against them both and, amongst other things, malicious emails were sent from various bogus email addresses to members of the Trust’s management.

The nurse complained to the police, who arrested Mr Garamukanwa but no charges were brought.

The Trust suspended Mr Garamukanwa and investigated the matter during which the Trust met with the police who provided copies of photographs found on Mr Garamukanwa’s mobile telephone and information from a notebook  linking 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 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.

But employers need to exercise care in using information provided by the police as all cases are fact specific.

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