The Employment Appeals Tribunal (EAT) has upheld an employment tribunal finding 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.

While the aspects of private life capable of falling within Article 8 are potentially wide, the EAT noted that whether an employee has a reasonable expectation of privacy will depend on the facts.

In the recent case of Garamukanwa v Solent NHS Trust [2015], the tribunal had been entitled to find that the employee could not have a reasonable expectation of privacy in relation to material about a personal relationship with a work colleague which had been turned into a workplace issue by the employee’s conduct.

However, a disturbing feature of the case is the provision of material to the employer by the police and the role that played in the employer’s investigation and decision to dismiss the employee. The decision raises questions such as should an employer be allowed to rely on such information.

In this case, Mr Garamukanwa (Mr G) was employed by Solent NHS Trust as a clinical manager. When staff nurse Maclean (M) ended their relationship, Mr G suspected that she had started a relationship with a healthcare support worker on her ward, Ms Smith (Ms S). Mr G sent a threatening email to both of them stating that if they do not tell their manager Mr Brown, he would. Soon after, there was also an anonymous letter sent to the Trust about their relationship and further a fake Facebook account adding approximately 150 employees of the Trust from which messages about M and Ms S were sent. M complained to the police after receiving emails containing unpleasant comments, together with other employees of the Trust.

The Trust appointed a manager, Ms Burton (Ms B) to carry out an investigation during which Mr G was put on suspension on full pay. Ms B met with the police, in addition to discussing the evidence given to them; she was also given copies of photographs taken from Mr G’s phone by the police.

Following a disciplinary hearing, Mr G was summarily dismissed for gross misconduct, the dismissing officer relying principally on the photographs as supporting evidence that Mr G was responsible for the malicious emails. Mr G’s internal appeal was unsuccessful and he brought a number of claims at the Employment Tribunal including one saying 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 purely or essentially to his private life, and by using evidence in relation to such matters to justify its decision to dismiss him.

The tribunal held that Article 8 had not been engaged because the conduct of the person who sent the anonymous emails had an impact on the case, the emails were sent to work addresses and dealt at least in part with work-related matters, the impact on M and Ms S affected their emotional stability and caused distress to an extent that could adversely affect their performance at work.

The tribunal dismissed the claims and Mr G appealed. The appeal was limited to the question of whether the tribunal had dealt properly with the Article 8 issue, which concluded it had.

Conducting a disciplinary against an employee must be done with care and properly. A fair procedure must be followed and a full investigation must be carried out taking into account the evidence and facts.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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