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Right to privacy in employment

Posted on 24th October 2016
Case law

In this case, the employer was able to rely on information given to it by police when deciding whether to dismiss.

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The emails had potential to impact on the work environment, were sent to work email addresses and related to work matters

Garamukanwa v Solent NHS Trust [EAT] 2016

The Facts

Mr Garamukanwa was a clinical manager for the NHS Trust and had previously been in a relationship with staff nurse Maclean. When Ms Maclean ended their relationship Mr Garamukanwa suspected she was involved with another member of staff, Ms Smith.

Ms Maclean and Ms Smith were the subject of various malicious emails sent to their work colleagues and Ms Maclean reported the matter to the police. The police investigated and, although did not bring charges against Mr Garamukanwa, they did make available to the NHS Trust evidence obtained during their investigation, specifically photos on Mr Garamukanwa’s mobile phone of Ms Maclean’s home and a sheet from a notebook with email addresses from which some of the malicious emails had been sent.

The NHS Trust conducted an investigation and ultimately dismissed Mr Garamukanwa for gross misconduct, relying on the material provided by the police.

Mr Garamukanwa brought a claim for unfair dismissal, which was rejected.  He appealed, questioning whether the employment tribunal had dealt correctly with the Article 8 issue: that he had a reasonable expectation that information he had not shared with anyone was private (and which had been obtained by the police) and should remain private and could not be relied on by the Trust to dismiss him.  The employment tribunal had disagreed.

The Decision

The EAT agreed with the employment tribunal that Mr Garamukanwa could have no expectation of privacy.

The emails had potential to impact on the work environment, were sent to work email addresses and related to work matters. Also, the distress caused to Ms Maclean and Ms Smith could well have impacted upon their performance at work. 

The senior position held by Mr Garamukanwa was relevant as he was subject to professional standards.

In these circumstances, it was proper that the NHS Trust used and relied on the material in reaching its decision to dismiss Mr Garamukanwa.

Comment

This case does not mean that employers can go on a fishing exercise to find evidence against employees.  In this case, where it had been provided to them by the police, the Trust was permitted to rely on it in dismissing.

There was also a question mark over whether the police should have given the Trust the evidence in the first place.  This was not addressed!

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