I spy?

May you use personal material seized by the police as part of an investigation into an employee's alleged misconduct?

Alastair Currie and Joanna Smart report on a recent high profile EAT win for the team, which looked at the issue of privacy in relation to a disciplinary investigation which relied on emails and photographs supplied by the police.

 

The background

Article 8 of the European Convention on Human Rights (ECHR) protects the right to privacy and a family life. This is not, however, an absolute right – it is subject to limits which are deemed to be necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Courts and tribunals must, as far as possible, give effect to primary and subordinate legislation in a way that is compatible with the ECHR.

Previous case law (X v Y) tells us that what constitutes part of a person's 'private life' depends on the circumstances – such as whether the conduct is in private premises and, if not, whether it happens in circumstances in which there is "a reasonable expectation of privacy for conduct of that kind." (paragraph 55(4)).

In Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal (EAT) considered whether Article 8 of the ECHR had been engaged in relation to an employer's use of material belonging to an employee that had been provided to the employer by the police at the end of a criminal investigation.

The facts

Mr Garamukanwa, worked as a clinical manager for Solent NHS Trust (Solent). He formed a personal relationship with a staff nurse, Ms Maclean. When that relationship ended, Mr Garamukanwa suspected that Ms Maclean had formed a relationship with a female colleague, Ms Smith. He resented this.

Anonymous malicious emails were sent from various fictional email addresses to management and staff at Solent. This included colleagues of Mr Garamukanwa and Ms Maclean. A false Facebook page was set up with the names of approximately 150 employees of Solent. Ms Maclean also became concerned that Mr Garamukanwa was harassing and stalking her. Ms Maclean reported this to the police who conducted a separate investigation into Mr Garamukanwa, but he was not charged.

Once their investigation had concluded, the police provided Solent with material that they had collated as part of their own investigation. This included photographs which they had obtained from Mr Garamukanwa's smartphone and some private emails he had sent to various recipients, including Ms Maclean and her friends. The photographs included images of Ms Maclean's home and sheets of paper from a notebook showing the email addresses to which some of the anonymous malicious emails had been sent. The police advised Solent that Solent was entitled to use this information in their own investigations.

Solent investigated, and concluded that there was sufficient evidence to link Mr Garamukanwa to the anonymous emails and the key piece of evidence upon which the investigator relied was the photographs of those email addresses on Mr Garamukanwa's smartphone.

At the ensuing disciplinary hearing, Mr Garamukanwa provided the panel with further private messages between himself and Ms MacLean, asking that these be considered.

Following their investigation and disciplinary meeting, Solent dismissed Mr Garamukanwa for gross misconduct. This was upheld on appeal. Mr Garamukanwa brought a claim for unfair dismissal, during which he argued that there had been a breach of his rights under Article 8 of the ECHR because Solent had examined matters (namely, the emails and photos) which related to Mr Garamukanwa's private life. He also brought claims for race discrimination and breach of contract.

The employment tribunal rejected Mr Garamukanwa's claim for unfair dismissal and breach of Article 8, as well as his claims for race discrimination and breach of contract.

Mr Garamukanwa appealed.

The decision

The EAT agreed with the employment tribunal and rejected Mr Garamukanwa's appeal.

In coming to its decision, the EAT said that Article 8 was not engaged because Mr Garamukanwa had no reasonable expectation of privacy in the allegedly 'private' material provided to Solent, both by the police and by Mr Garamukanwa himself.  

The EAT also disagreed with Mr Garamukanwa's contention that the emails and photographs should have been considered separately; the EAT said that they were rightly considered together, as the same material.

Because Ms Maclean had, in fact, complained to Solent that she felt harassed by Mr Garamukanwa, and Solent had discussed this with Mr Garamukanwa (prior to the commencement of the police investigation or receipt of any of the anonymous emails), the EAT felt it was difficult to see how he could have any further expectation of privacy when sending emails to Ms Maclean - even if they were sent to her private email address, and even if those emails referred to their former relationship. Furthermore, Mr Garamukanwa himself had volunteered additional material at the disciplinary hearing and, in doing so, had "negated the suggestion that he himself had any expectation of privacy in any of the material.”

Further factors relevant to the EAT's decision were that

- Solent did not seek to go beyond the material provided by the police or to expand in any way the parameters of the investigation, but simply relied on what the police provided; and

- Mr Garamukanwa did not raise the issue of breach of his Article 8 rights during his disciplinary investigation, dismissal or in his employment tribunal pleadings or evidence; the first time this was raised was at the employment tribunal hearing. 

What does this mean for me?

Article 8 of the ECHR protects private correspondence and communications and, potentially, emails sent at work where there is reasonable expectation of privacy. However, as here, otherwise private emails may be brought into the public sphere if they impact on work related matters. In this case, the emails in question distressed colleagues, potentially affecting their work; and Mr Garamukanwa's judgment, as a manager, was rightly to be examined.

That said, it is important to note that cases of this type will turn on their own facts. The EAT found, on the facts, that Mr Garamukanwa had no reasonable expectation of privacy in the material considered by Solent as part of their investigation. However, that does not mean that all email correspondence and personal photographs may be automatically be brought within the remit of an investigation.

Please note that permission is currently being sought to appeal this decision.

To hear more about this case, and other knotty issues around conducting employee investigations, please join us at one of our forthcoming workshops on managing employee investigations. There is no charge for these events. For further details and booking information, please select the workshop taking place at the location nearest to you.

Birmingham - 29 June 2016

Bristol - 5 July 2016

London - 6 July 2016

Leeds - 14 July 2016