In Garamukanwa v Solent NHS Trust the EAT considered whether the conclusion that the Claimant had no reasonable expectation of privacy (in respect of emails sent to a work colleague, with whom he had had a relationship, and photographs on his iPhone) was one that was open to the Employment Tribunal on the basis of the evidence before it.
The Claimant had been employed as a Clinical Manager for the Respondent during which time he had formed a personal relationship with a colleague, Lauren Maclean, who was employed as a staff nurse. The relationship ended in May 2012 but the Claimant then suspected that Miss Maclean had started a new relationship with a more junior member of staff on the same ward. The Claimant then sent some anonymous and malicious emails from bogus email addresses to management and staff about his two colleagues, wrote an anonymous letter and set up a fake Facebook page. Miss Maclean also alleged she felt she was being stalked and harassed by the Claimant. Management then undertook an investigation and the Claimant was suspended. Miss Maclean made a complaint to the police who also investigated the matter. The Claimant was arrested but no charges were eventually brought.
The Respondent then used the police evidence in its investigation. A comprehensive investigation report was produced recommending that the matter proceed to a disciplinary hearing. The Claimant was subsequently dismissed for gross misconduct. The dismissing manager concluded that there were items on the Claimant's iPhone which implicated him.
The Claimant then raised a Tribunal claim during which he argued that the employer had acted in breach of Article 8 (the right to privacy) of the European Convention on Human Rights by examining matters purely or essentially related to his private life. This argument was rejected by the Employment Tribunal. They were satisfied that the conduct of the Claimant in sending the anonymous emails had an impact on work related matters and accordingly the relationship between the Claimant and the Respondent - they were sent to the work email addresses of the recipients and at least in part dealt with work related matters. They also caused distress to the recipients and potentially impacted on their ability to perform their roles. For that reason the Employment Tribunal concluded that Article 8 was not engaged in this particular case.
The appeal to the EAT raised the question of whether the Employment Tribunal had dealt properly with the Article 8 issue. The Claimant asserted the emails and photos he sent were entirely private and personal and he had a reasonable expectation that that material would remain private and therefore Article 8 was engaged. The EAT disagreed with the Claimant, upholding the Employment Tribunal's finding that there was no reasonable expectation of privacy.
It should be noted that Article 8 does potentially protect emails sent at work where there is a reasonable expectation of privacy, and that cases such as this will turn on the particular facts involved.