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No expectation of privacy for emails aimed at distressing colleague

In Garamukanwa v Solent NHS Trust, Garamukanwa (G), a Clinical Manager had formed a personal relationship with Staff Nurse Lauren Maclean, which ended in May 2012.  G suspected that M had then formed a relationship with a colleague Debbie Smith (S), which he believed could impact on patient care.  Anonymous emails were sent from various different bogus email addresses (“deesmith”, “katieprice” and “notflorencenightingale”) to members of the Trust’s management, which were malicious in nature and content and were designed to cause distress to M and S.

M became concerned that G was harassing her. Then, another email was sent from the “katieprice” email address to a large number the Trust’s staff containing unpleasant personal comments.  M reported the matter to the police who investigated the complaint. G was arrested, but no charges were brought. The Trust, however, decided that it should investigate the matter.

The investigator met with the police. She was provided with copies of photographs found by the police on G’s iPhone which included photographs of M’s home and also a photograph of a piece of paper containing details of the e-mail addresses from which the malicious e-mails had been sent. The police gave the Trust permission to use the evidence. The Trust concluded that G was responsible for sending the emails, principally relying upon the photographs on G’s iPhone, and he was dismissed for gross misconduct.

An employment tribunal dismissed G’s claims for unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal.  The ET also rejected G’s argument that the Trust had breached his Article 8 right to private life under the Human Rights Act 1998, by examining matters that related purely to G’s private life and had used evidence in relation to such matters to justify the decision to dismiss. The ET found that Article 8 was not engaged within a ‘private life’ context because the e-mails were sent to the work addresses of the recipients and dealt at least in part with work related matters.

The EAT rejected G’s appeal, on the Article 8 issue, the only ground on which he was permitted to appeal. This case involved a disciplinary investigation into matters that, whilst they were linked to a personal relationship with a workplace colleague, were brought into the workplace by G himself, related to workplace issues and the unpleasant comments were sent to colleagues at their work email addresses. Furthermore, the material linking G to the emails had been gathered in a criminal investigation. Given the evidence, the ET was entitled to conclude that G had no reasonable expectation of privacy in respect of emails sent to a work colleague, with whom he had had a relationship, and photographs on his iPhone. Therefore, Article 8 was not engaged. 

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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