Not a breach of Human Rights for employer to read employee emails in disciplinary investigation

27 April 2016

Louise McAloon, Partner, advises that employees should be made fully aware that there is no expectation of privacy in relation to their email correspondence and communications from and to work email addresses on foot of a recent EAT Decision

Not a breach of Human Rights for employer to read employee emails in disciplinary investigation

The EAT in Garamukanwa v Solent NHS Trust has dismissed an appeal in which the employee unsuccessfully argued that his employer was in breach of Article 8 of the European Convention on Human Rights by reading his emails as part of a disciplinary investigation.  The EAT upheld the Tribunal’s decision that the Claimant had no reasonable expectation of privacy in respect of emails sent to a work colleague, with whom he had had a relationship, and photographs on his iPhone. 

The Claimant was a clinical manager for Solent Trust. He formed a personal relationship with a staff nurse and when their relationship had come to an end he suspected that the nurse had developed a new relationship with another colleague. Anonymous malicious emails were sent from various fictional email addresses to management as part of an apparent vendetta against the nurse and her colleague. Further a fake Facebook account was set up in the name of the colleague and to which the names of approximately 150 work colleagues was added.  The employer investigated, and concluded there were items on the Claimant's iPhone which implicated him and linked him to the anonymous emails. He was dismissed for gross misconduct. His claim for unfair dismissal failed. The Tribunal dismissed the argument that his employer had acted in breach of Article 8 by examining matters relating purely or essentially to his private life and found that that Article 8 was not engaged as the emails had a potential impact on work, and dealt, at least in part, with work related matters.

The EAT dismissed the appeal from the Claimant and referred to the guidance of Mummery LJ in X v Y on the impact of Convention rights in unfair dismissal cases. Whilst finding that Article 8 (the right to privacy) was not engaged on the facts of this case, the EAT further noted that any interference with the Claimant’s Article 8 rights would have been justified in any event by the employer’s need  to protect the health and welfare of other employees and to ensure that they could go about their employment free from harassment from the person responsible for sending malicious anonymous emails into the workplace.  The disciplinary allegations raised a serious matter that affected workplace conduct and relationships and the judgment of a senior manager, the Claimant. 

Article 8 does extend to protect private correspondence and communications and, potentially, emails sent at work where there is reasonable expectation of privacy. However, there was no such expectation in this case as the emails had impacted on work related matters and the emails were sent to work addresses of the recipients.  

A timely reminder that employers should ensure through its policies and training that staff are fully aware that there is no expectation of privacy in relation to their email correspondence and communications from and to work email addresses.  

For employment law advice or training on staff policies and procedures please contact Louise McAloon, Partner at Worthingtons Commercial Solicitors, Belfast.

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