The European Court of Human Rights (ECHR) has held in Garamukanwa v Solent NHS Trust that Article 8 of the European Convention on Human Rights was not engaged when an employer used material seized by the police in the course of a criminal investigation for disciplinary purposes.
The claimant was employed by Solent NHS Trust (the Trust) as a clinical manager. He had been having a relationship with a staff nurse, Ms MacClean, but she ended their relationship and he suspected that she had entered into a relationship with a healthcare support worker on her ward. He sent emails to them both stating that if they didn't inform their manager of their relationship then he would do so. The manager received an anonymous letter referring to inappropriate sexual behaviour. Ms MacClean and the healthcare support worker denied the relationship. An anonymous person then added the names of approximately 150 Trust employees to a fake Facebook account and anonymous emails were sent to members of the Trust's management. Following an email which contained unpleasant comments and which was sent to a large number of colleagues, Ms MacClean contacted the police. The claimant was suspended on full pay, and the police arrested him but no charges were brought.
The Trust appointed an investigating officer to look into the allegations made against the claimant. When the investigating officer met with the police she was given copies of photographs the police had found on the claimant's mobile phone, including photos of Ms MacClean's home and a sheet from a notebook containing the email addresses from which some of the malicious emails had been sent. The investigating officer concluded that there was enough evidence from this material to link the claimant to certain malicious emails and recommended that he should be subject to disciplinary proceedings.
The claimant was summarily dismissed for gross misconduct. In coming to the decision to dismiss the dismissing officer relied mainly on the photographs as supporting the argument that the claimant was responsible for sending the malicious emails. The claimant brought various claims, one of which was that the Trust had breached Article 8 of the ECHR by failing to respect his right to a private life, by examining matters that related essentially to his private life, and by using evidence in relation to these matters to justify its decision to dismiss him.
The ECHR held that Article 8 was not engaged. By the time of his arrest he had been aware for almost a year that Ms Maclean had raised concerns about his behaviour with the Trust and therefore he could not have reasonably expected that, after this date, any materials or communications linked to the allegations would remain private. It was also considered relevant that the claimant had not objected to the use of any of the material during the Trust's internal investigation and disciplinary proceedings, and had voluntarily provided the disciplinary panel with further communications of an intimate nature between him and Ms Maclean.
Take note: Interestingly, a couple of years' ago Article 8 was considered in Barbulescu v Romania, in the context of personal messages on a work-related internet messaging account, and it was found that workplace communications as well as personal communications may be covered by the notions of "private life" and "correspondence". In Garamunkanwa however there was no infringement of Article 8 so whether or not an employee has a reasonable expectation of privacy in workplace communications will be dependent on the particular circumstances.
This article is taken from HR Law – July 2019
