Article 8 (right to privacy) not engaged by employer investigating emails

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

When an employer investigated an employee's emails to a work colleague, was Article 8 of the European Convention on Human Rights (right to privacy) engaged?

No, held the EAT in Garamukanwa v Solent NHS Trust, on the facts of that case.

The Claimant was a clinical manager for the Trust. He formed a personal relationship with a staff nurse, Ms MacLean. The Claimant then suspected that Ms McLean had formed a relationship with a female colleague, Ms Smith. He resented this. Anonymous malicious emails were sent from various fictional email addresses to management. Ms Maclean also became concerned that the Claimant was now harassing and stalking her. 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.

In the course of the employment tribunal proceedings he unsuccessfully argued that the employer had acted in breach of Article 8 by examining matters related purely or essentially to his private life. The employment tribunal rejected this. It considered that Article 8 was not engaged on account that the emails had a potential impact on work, and dealt, at least in part, with work related matters.

The EAT agreed. It relied on the guidance of Mummery LJ in X v Y on the impact of Convention rights in unfair dismissal cases. The first question always to be asked is whether the circumstances of the dismissal fall within the ambit of one or more articles of the Convention. Unless they do, the rights are not engaged and need not be considered further.

Article 8 does extend to protect private correspondence and communications and, potentially, emails sent at work where there is reasonable expectation of privacy. However, here, the emails had impacted on work related matters and the emails were sent to work addresses of the recipients. They distressed colleagues, potentially affecting their work, and the Claimant's judgement, as a manager, was rightly to be examined.

These were all features that entitled the employment tribunal to conclude that Article 8 was not engaged and therefore not relevant because the Claimant had no reasonable expectation of privacy in respect of such communications.