Privacy rights in the workplace

6 May, 2016
by: Cripps Pemberton Greenish

Mobile phoneIn the recent case of Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal held that an employer had not breached an employee’s privacy rights by reviewing emails and photographs on the employee’s mobile phone on the basis that the information related to work related issues affecting the workplace.

Facts: Mr Garamukanwa was a clinical manager for the Solent NHS Trust who had formed a personal relationship with a staff nurse, Ms Maclean. After the relationship broke down, Mr Garamukanwa believed that Ms Mclean had formed a new relationship with another colleague. He was not happy about this.

Over the next ten months, Ms Maclean and her colleague were the subject of a vendetta which included the sending of malicious emails about them to members of the Trust’s management and other members of staff. The emails were from various unrecognised email addresses.

Ms Mclean believed Mr Garamukanwa was responsible and reported the events to the police. When the police had concluded their investigations they gave the evidence they had collated to the Trust for use in their internal disciplinary investigation. The evidence included a photograph (taken from Mr Garamukanwa’s phone) of a sheet of paper containing details of the email addresses from which the anonymous emails had been sent. The Trust carried out disciplinary proceedings and Mr Garamukanwa was dismissed for gross misconduct.

Mr Garamukanwa brought a claim for unfair dismissal and asserted that the Trust had breached his privacy rights by viewing the private material on his mobile phone.

Decision: Mr Garamukanwa’s claims were dismissed by the Employment Tribunal. On appeal, the Employment Appeal Tribunal noted that the aspects of private life capable of falling within a person’s privacy rights are potentially wide. They extend to private correspondence and communications including emails sent at work where there is a reasonable expectation of privacy. In this instance, Mr Garamukanwa had brought a personal relationship into the workplace which had subsequently given rise to work related issues. Therefore, he had no reasonable expectation of privacy in respect of private material.

The appeal was dismissed.

Comment

This case demonstrates the difficulties an employee may face when trying to assert their privacy rights in the workplace, especially where they have brought private matters into the workplace (and those private matters affect their colleagues).

Employers should note that the facts of this case were unusual. The EAT made clear that whether or not there is an expectation of privacy in a case must depend upon the facts and circumstances of that case. It is a good idea for employers to have a clear policy containing guidelines for email correspondence to and from work email addresses.