Article 8 of the European Convention on Human Rights ("ECHR") provides that everyone has the right to respect for their private and family life, home and correspondence and that there shall be no interference with this right by a public authority except as provided by law and is necessary in the interests of national security, public safety, crime prevention and the protection of rights and freedoms of others.
The EAT has upheld a decision of the employment tribunal that Article 8 of the ECHR was not engaged when an employer used an employee's email correspondence and material provided to them by the police during its investigation for disciplinary purposes (Garamukanwa v Solent NHS Trust UKEAT/0245/15).
The Claimant in this case, a clinical manager for the Trust, formed a personal relationship with a staff nurse. When the relationship came to an end, the Claimant suspected that the staff nurse had started a relationship with another colleague. The Claimant resented this and began sending malicious and anonymous emails to the staff nurse and other members of the Trust. The Trust investigated by looking into the Claimant's emails and also at material provided to them by the police who had obtained emails and photos from the Claimant's mobile phone as part of their criminal investigation. The Trust concluded that the material provided by the police could link the Claimant to the anonymous emails and he was dismissed for gross misconduct.
The Claimant brought a tribunal claim for unfair dismissal and argued 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 to his private life to justify its decision to dismiss him.
The Tribunal rejected the Claimant's argument and this finding was upheld by the EAT. The EAT considered that Article 8 was not engaged because the emails had an impact on work related matters. The emails were sent to work email addresses, they distressed colleagues, potentially affecting their work and it was appropriate for the Claimant''s ability as a manager to be examined.
The EAT based its decision on guidance given by the Court of Appeal in the case of X v Y  IRLR 625 in which it was held that an employee had been fairly dismissed when his criminal conduct was brought to his employer's attention. The Court advised that his ''private life'' will depend on the facts and circumstances of a particular case and the first question to be asked is whether the circumstances of the dismissal fall within the ambit of one or more articles of the convention. All of the above factors led the tribunal to conclude Article 8 was not relevant because the Claimant had no reasonable expectation of privacy in respect of the communications and circumstances at hand.
Although it is clear to see how the actions of the Claimant in this case and the communications involved had the potential of affecting the work of both the Claimant and other colleagues, and amounted to gross misconduct; the EAT failed to address the issue of whether the police were entitled to pass information from their investigation to the Trust. The EAT suggested that it should not be down to an employer to separate out material provided by the police from their investigation. It is also unrealistic to expect an employer to disregard potentially highly relevant information or material from their investigations.
This article was written by Kelli Pimm.