Garamukanwa v Solent NHS Trust

Article 8 is engaged in an unfair-dismissal case only if the circumstances fall within its ambit. Whether workplace communications or personal material attract a reasonable expectation of privacy is fact-sensitive.

Material concerning a personal relationship may fall outside Article 8 where the employee has brought the matter into the workplace, communications affect colleagues and work, and the employee has no reasonable expectation of controlling their subsequent use. The statutory unfair-dismissal test is generally sufficiently flexible to give effect to applicable Convention rights.

The claimant, a senior NHS manager, was summarily dismissed for gross misconduct after the respondent concluded that he had sent malicious anonymous emails concerning a former colleague and another employee. The police, investigating allegations of harassment and stalking, gave the respondent access to material obtained during the investigation, including photographs from the claimant’s iPhone.

The Employment Tribunal dismissed claims for unfair dismissal, discrimination, victimisation, harassment and wrongful dismissal. It held that Article 8 was not engaged and that the dismissal was fair. The claimant’s permitted appeal challenged the use of allegedly private emails and photographs in the disciplinary process.

1. Appeal dismissed. The Employment Tribunal was entitled to find that Article 8 was not engaged because the claimant had no reasonable expectation of privacy in the material used by the respondent.

2. The Tribunal’s findings showed that the impugned conduct, though connected with a personal relationship, had been brought into the workplace. The anonymous emails were sent to work addresses, concerned workplace matters, caused distress capable of affecting colleagues’ work, and raised a legitimate concern about the conduct and judgment of a senior manager. Those matters supported the conclusion that the material was not within the protected sphere of private life in the circumstances.

3. The Tribunal was entitled to consider the emails and iPhone photographs together. The police had provided all the material for the respondent’s use in its disciplinary investigation, without drawing the distinction advanced on appeal. The respondent did not enlarge the investigation beyond the material provided.

4. The claimant had not objected to the use of the material during the internal process and had volunteered further material. After his former colleague complained that his correspondence made her feel harassed, he could not reasonably expect to control whether she complained or what use she made of emails sent to her. The emails also extended beyond purely personal feelings and addressed workplace issues.

5. Following X v Y [2004] ICR 1634, engagement is an anterior question to breach. Since Article 8 was not engaged, no separate assessment under Article 8(2) was required. The Tribunal’s findings would in any event have supported justification: the investigation pursued the protection of other employees’ health and welfare and workplace relations, and was found fair in substance and procedure.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal.
• Employment Tribunal: dismissed the claims for unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal.