‘Private’ emails and human rights

04 May 2016

Mr Garamukanwa was employed by the Trust as a clinical manager. After his relationship with staff nurse Ms Maclean ended, he suspected that she had become involved with a female colleague. And that’s when anonymous action against the two women began, involving a false Facebook account and malicious emails sent to management.

Garamukanwa v Solent NHS Trust

Mr Garamukanwa was employed by the Trust as a clinical manager. After his relationship with staff nurse Ms Maclean ended, he suspected that she had become involved with a female colleague. And that’s when anonymous action against the two women began, involving a false Facebook account and malicious emails sent to management.

Ms Maclean felt that Mr Garamukanwa was stalking and harassing her. There was a police investigation, but no charges brought. Evidence from that investigation – which included photographs on Mr Garamukanwa’s phone connecting him to the malicious emails - was handed over to the Trust and used in subsequent disciplinary proceedings. Mr Garamukanwa was dismissed for gross misconduct.

He went on to lose his claims for unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal. But the key question for the Employment Appeal Tribunal (EAT) was whether the NHS Trust had, by looking at ‘private’ material that Mr Garamukanwa had sent to Ms Maclean and photos held on his phone, infringed his human rights. He claimed interference with Article 8 – the right to respect for private and family life, home and correspondence. The tribunal, he said, had not distinguished between public material (the anonymous emails sent to his employer) and private material (such as emails to Ms Maclean about his feelings and their relationship). He claimed that he had a reasonable expectation that the latter would remain private.

No, said the EAT. There was no reasonable expectation of privacy and therefore Article 8 didn’t apply. Mr Garamukanwa’s behaviour had effectively turned material about a personal relationship into a workplace issue. There was no need to draw a distinction between what he claimed was ‘public’ and ‘private’. The police hadn’t done so, and had allowed the Trust to use all of the material without distinction.

Also relevant was:

  • that not only did Mr Garamukanwa not object to the evidence being used in the investigation and disciplinary, he volunteered additional material. This negated the suggestion that he had any expectation of privacy in any of the material;
  • that once Ms Maclean had complained about feeling harassed, there must have been an expectation that she would complain about any further correspondence (even if those emails were sent to her private address and were about their previous relationship). Mr Garamukanwa couldn’t expect to be able to control what she did with emails she received;
  • that the content of emails sent to Ms Maclean strayed beyond the purely personal; they touched on workplace issues too.

A fact-specific case, but one that illustrates very well some difficult issues that employers face from time to time.


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