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Nick Bailey
Nick Bailey,
ASSOCIATE - SOLICITOR
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Can an employee’s emails be ‘private’ under Human Rights law?
04 May 2016

Garamukanwa v Solent NHS Trust

In this recent case the EAT dismissed an appeal in which the claimant tried to argue that his employer was in breach of Article 8 of the European Convention on Human Rights (ECHR) by examining his emails during the course of a disciplinary investigation.

Background – the 'right to private life' under the ECHR

Article 8 of the ECHR provides that everyone has a right to respect for their private and family life, their home and their correspondence. Under the Human Rights Act, courts and tribunals must, as far as possible, give effect to legislation in a way that is compatible with the ECHR.

Facts

The claimant was employed as a manager by the Trust. He formed a relationship with a staff nurse but after the relationship ended he suspected the nurse was having a relationship with another colleague. He took this somewhat badly.

Following a series of malicious but anonymous emails to the Trust’s management and her colleagues the nurse became concerned with the claimant’s behaviour and reported him to the Trust’s management. The Trust investigated the claimant and ultimately found that the claimant's mobile phone linked him to the anonymous emails.

The claimant was dismissed for gross misconduct and his claim for unfair dismissal was dismissed by an employment tribunal. The tribunal rejected the claimant’s argument that the Trust had infringed his Article 8 right because the emails on his phone had a potential impact on work and dealt with work related matters and were therefore not ‘private’. The claimant appealed.

Decision

The EAT agreed with the employment tribunal. It found that Article 8 does 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 were sent to the work email addresses of the recipients and had impacted work related matters.

These were the essential 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.

While the definition of ‘private life’ under Article 8 is a wide one, the EAT noted that whether an employee has a reasonable expectation of privacy will always depend on the facts.

Comment and practice point

This case does demonstrate that private relationships that are brought into the workplace may no longer be regarded as 'private' within the meaning of the ECHR, and actions of the parties, in the absence of any reasonable expectation of privacy, can even be used in disciplinary hearings in certain circumstances (such as this).

The case is also a useful reminder for employers to regularly review their IT and conduct policies and to ensure through staff training that employees are aware of the circumstances when their email and other communications may be monitored or reviewed.

Read our article on previous Article 8 legislation here.

For more information about this issue or to find out more about how the Employment team can help you, please contact the team on 0118 952 7284 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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