An appeal has been heard this month relating to the right to privacy and whether an employer can rely on an employee’s personal documents to justify dismissal.
Article 8 of the European Convention on Human Rights (ECHR) provides that:
- “Everyone has the right to respect for their private and family life, their home and their correspondence”.
- “There shall be no interference by a public authority with the exercise of this right except as accords with the law and as is necessary in a democratic society … or for the protection of the rights and freedoms of others”.
In Garamukanwa v Solent NHS Trust, Mr Garamukanwa was employed by the Trust as a clinical manager. Following the breakdown of a relationship with a fellow Trust employee (Ms Maclean) he suspected that she had entered into a relationship with another colleague, Ms Smith.
Mr Garamukanwa allegedly proceeded to harass the two ladies, making complaints and sending emails to them and the Trust alleging ‘inappropriate relations’ within the workplace. Several emails were also sent anonymously from different email addresses.
Ms Maclean made reports to the police and the Trust. The Trust spoke to the police, who disclosed photographs from Mr Garamukanwa’s phone of Ms Maclean’s house and evidence which suggested that he was the sender of the anonymised emails.
Mr Garamukanwa was summarily dismissed and the Tribunal found the dismissal to be fair.
He appealed, contending that the evidence obtained was private and personal and that Article 8 applied. He stated that the Trust should not have had that evidence and, without it, they would not have grounds for dismissal.
The Employment Appeal Tribunal decided that Article 8 was not engaged as:
- Whilst the emails were partly personal in nature, Mr Garamukanwa brought them into the workplace by sending them to work addresses, plus they related to workplace issues.
- The ladies felt distressed by the emails and the Trust had a duty of care for those employees.
- The Trust was not obliged to separate out the personal material from the rest of the evidence supplied by the police.
- Mr Garamukanwa did not object to the use of the evidence during the internal process and actually volunteered additional evidence. The Tribunal viewed this as negating the suggestion that he had any expectation of privacy.
The remit of Article 8 is wide and potentially includes emails sent at work where there is a reasonable expectation of privacy. This case was decided on its specific facts and obviously involved very serious allegations against an employee. Employers should still apply caution when looking to utilise evidence of a potentially personal nature in their internal processes and in some circumstances may need to disregard evidence when reaching a decision.