In Garamukanwa v. Solent NHS Trust
, the EAT has upheld a finding that Article 8 of the
European Convention on Human Rights was not engaged where an
employer had used material during a disciplinary hearing that was
found on the employee's phone and provided to the employer by
Mr Garamukanwa was employed by Solent NHS Trust
(Solent) as a clinical manager. He formed a
relationship with a staff nurse (Ms Maclean) but, when that
relationship ended, he suspected that Ms Maclean was having a
relationship with another colleague, a healthcare support
Mr Garamukanwa sent a series of malicious emails to Ms Maclean
and another employee, stating that if they did not inform their
manager of their relationship, he would do so. Ms Maclean reported
Mr Garamukanwa to Solent's management but, by this time, they
had also received an anonymous letter referring to alleged
inappropriate sexual behaviour. Mr Garamukanwa denied sending the
anonymous letter but apologised for sending the emails.
From this moment onwards, the anonymous person appeared to start
a vendetta against Ms Maclean. This included a fake Facebook
account being set up, and approximately 150 Solent employees were
added to the account. Further anonymous emails were also sent to
Ms Maclean was increasingly concerned regarding these actions
and she suspected that Mr Garamukanwa was behind them. Ms Maclean
made a statement to the police and, although Mr Garamukanwa was
arrested, no charges were brought.
Solent subsequently investigated Mr Garamukanwa's alleged
actions and concluded that his mobile phone linked him to the
anonymous email. Mr Garamukanwa was then dismissed for gross
The EAT were required to consider whether Article 8 of the
European Convention of Human Rights was engaged meaning that Solent
had no right to review Mr Garamukanwa's private emails.
The EAT agreed with the decision of the employment tribunal in
finding that the aspects of private life capable of falling within
the scope of Article 8 are potentially wide and could include
emails sent at work. However, this would only be the case where
there is a reasonable expectation of privacy.
Whether there is an expectation of privacy will depend on the
facts in each case but it was found here that there was no such
reasonable expectation. The tribunal had found, and the EAT agreed,
that the communications had been brought into the workplace by Mr
Garamukanwa and had given rise to work-related issues. The emails
had been sent to work email addresses and had adverse consequences
for other members of staff.
This case is fact specific but the employment tribunal was
entitled to find that Mr Garamukanwa had no reasonable expectation
of privacy. Although the aspects of private life capable of falling
within Article 8 are wide, Mr Garamukanwa had turned a private
issue into a workplace issue through his conduct.
The EAT was not required to deal with whether the material
should have been passed to Solent by the police in the first place.
The general position is that any material obtained by the police
should have been returned to Mr Garamukanwa if a decision was made
not to prosecute. It follows that information should not then be
provided to a third party, but this issue was not addressed in this
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