Article 8 Right to Privacy


27 May, 2016

Article 8, the Right to Privacy, is not engaged by an employer investigating emails

How far can an employer go in investigating an employee's conduct where that conduct has had an impact on the workplace and / or their ability to do their job without encroaching upon an individual's right to privacy? When, if at all, will Article 8 of the European Convention on Human Rights (right to privacy) be engaged? Where does the workplace end and an employee's private life begin?

The EAT, in the recent case of Garamukanwa v Solent NHS Trust [2016], has held that on the facts of that case, Article 8 of the European Convention on Human Rights (Right to Privacy) was not engaged where an employer investigates an employee's emails to another work colleague.

The Claimant was a clinical manager for the Trust and formed a personal relationship with a staff nurse. The Claimant then suspected that the nurse had formed another relationship with a female colleague and was jealous. Anonymous malicious emails were sent from various fictional email addresses to management concerning the 'inappropriate' nature of that relationship. The nurse also felt anxious that the Claimant was harassing and stalking her.

The Trust investigated and concluded there were items on the Claimant's iPhone which incriminated him as being responsible for the anonymous emails. They accordingly dismissed him for gross misconduct and his subsequent claim for unfair dismissal failed.

The Claimant unsuccessfully argued in the course of proceedings that the Trust had acted in breach of Article 8 by examining matters related purely or essentially to his private life. This argument was rejected. The Tribunal considered that Article 8 was not engaged on account of the fact the emails had a potential impact on work and dealt, at least in part, with work-related matters.

The EAT agreed and relied upon the guidance of Mummery LJ in X v Y [2004], which sets out guidance on the impact of Convention rights in Unfair Dismissal cases. The first question to be determined is whether the circumstances of the dismissal fall within the ambit of one or more articles of the Convention. If the answer is no, the rights are not engaged and need not be considered further.

The ambit of Article 8 (right to privacy) extends to protect private correspondence and communications. This could potentially include emails sent at work where there is a 'reasonable expectation of privacy.'

In this case, however, the emails had impacted on work-related matters. Whilst they related to a personal relationship with a workplace colleague, they were brought into the workplace by the Claimant himself and gave rise to work related issues, not least in so far as the Nurse's own working relationship with the Claimant was concerned. It was deemed relevant that the emails were sent to the work addresses of the recipients and the effect of the emails was that colleagues were distressed, which potentially impacted upon their work.

It was held that all of these factors meant that the Claimant could have had no reasonable expectation of privacy in relation to the emails. Article 8 was not, therefore, engaged and the Trust was entitled to take account of them in reaching their decision to dismiss.

In cases of this nature, as a starting point, in order to justify consideration of potentially 'private' correspondence, employers need to be able to show that their business or organisation has been negatively affected by it in some way. Alternatively, the correspondence must affect the employee's ability to do their job in order to be actionable. It will then be a question of determining whether the employee had a reasonable expectation of privacy in relation to that correspondence, which will be determinable on the facts of each particular case. Here, the Claimant's conduct in circulating the emails to his colleagues meant he could have had no such reasonable expectation as in so doing, he had made his otherwise personal relationship, a workplace issue.

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