In Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal (EAT) considered whether it was a breach of Article 8 of the European Convention on Human Rights (ECHR) for employers to use personal material stored on an employee’s mobile phone in disciplinary investigations where such content has an effect on work-related matters.

Mr Garamukanwa, a clinical manager, developed a personal relationship with Ms Maclean a staff nurse. The relationship broke down and Mr Garamukanwa suspected that Ms MacLean may have started a new relationship with a female colleague, Ms Smith.  In June 2012, Mr Garamukanwa sent an email to both Ms Maclean and Ms Smith threatening that if they did not inform their manager of their relationship, that he would.  Before this email had been sent, an anonymous letter had been sent to their manager accusing Ms Maclean and Ms Smith of ‘inappropriate sexual behaviour’.  In addition, Mr Garamukanwa sent numerous malicious emails from fictitious email addresses to colleagues and members of the Trust’s management.  Ms Maclean reported Mr Garamukanwa to the Police; he was investigated for stalking and harassment.  Although arrested, he was not charged.

When the Trust carried out its own investigation, the Police provided copies of photos that had been found on Mr Garamukanwa’s mobile phone during its investigation.  One photo was of a piece of notepaper that listed details of the email addresses from which the malicious emails had been sent.  Largely based on the photographic evidence that the Police had found on his phone, Mr Garamukanwa was summarily dismissed for gross misconduct.

Mr Garamukanwa appealed, but his dismissal was upheld.  Mr Garamukanwa brought various claims at Tribunal, including, that the Trust had breached  Article 8 of the ECHR for failing to respect his right to family and private life.

The ET dismissed Mr Garamukanwa’s claims.  It held that Article 8 of the ECHR was not engaged and, therefore, was not relevant as Mr Garamukanwa’s conduct was causing issues at work.  The dismissal was held to be fair.

Mr Garamukanwa appealed to the EAT, again basing his case on the Trust breaching his right under Article 8.

The appeal was dismissed.  The EAT held that the right to privacy under Article 8 does extend to protect private communications and even emails sent at work, however, this is only the case where there is a reasonable expectation of privacy.  In the case at hand, Mr Garamukanwa’s behaviour afforded no such expectation of privacy.  The emails were to work addresses of colleagues and left the recipients feeling distressed which affected their work.  Mr Garamukanwa’s actions in the context of his position as a manager were also relevant in the EAT’s decision.

The EAT decision on this case establishes that private communications and personal affairs may not remain private once they affect the workplace.  Further, there cannot be an expectation of protection under Article 8 of ECHR where such material or relationships have an effect on work related matters.

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