Article 8 of the European Convention on Human Rights (ECHR) provides that everyone has the right to respect for their private and family life, their home and their correspondence. Public authorities, such as an NHS Trust and the Employment Tribunal (ET), are required to act in a way that is compatible with the ECHR. Guidance on how ETs should deal with Article 8 in the context of unfair dismissal cases was given by LJ Mummery in the Court of Appeal in X v Y. In such cases, the ET should first consider whether or not the right in question is 'engaged', in the sense of being 'relevant'. If the answer to that question is 'no', there is no need to go on to deal with the question of any possible breach of the ECHR.

In Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal (EAT) has upheld the ET's decision that Article 8 was not engaged when, in the course of a disciplinary investigation, an employer made use of emails sent by one of its employees to a work colleague that had been seized by the police in the course of gathering evidence for a possible criminal investigation.

Mr Garamukanwa, a clinical manager working for Solent NHS Trust, had formed a personal relationship with Ms Maclean, a staff nurse at the hospital where he worked. When their relationship ended, he suspected that she had formed a relationship with Ms Smith, a healthcare support worker on the same ward. Mr Garamukanwa expressed the view that Ms Maclean's relationship with a junior member of staff could produce a conflict of interest between patient care and emotional priorities and had emailed a friend of Ms Maclean's raising his concerns. The friend told him to 'leave her in peace'.

There followed a number of activities by someone who appeared to have a vendetta against Ms Maclean and Ms Smith. A fake Facebook account was set up in Ms Smith's name and anonymous emails that were malicious in nature were sent from various bogus email addresses. These showed that the author was aware of the women's activities and Ms Maclean became concerned that Mr Garamukanwa was stalking her. After a further email containing unpleasant personal comments was sent to a large number of members of staff, Ms Maclean went to the police. Whilst the police investigation was ongoing, Mr Garamukanwa, who denied any involvement in the malicious activity, was suspended on full pay.

The police decided not to bring any charges but the Trust decided to carry out its own investigation into the matter. A person not involved in the events, Mrs Burton, was brought in to carry out the investigation and was given permission by the police to use evidence that they had gathered. Of particular interest were photographs on Mr Garamukanwa's phone, one of which contained details of the email addresses from which the malicious emails had been sent and for which he could provide no reasonable explanation. Mrs Burton concluded that there was sufficient evidence to link him to the emails and he was dismissed for gross misconduct.

Mr Garamukanwa brought claims of unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal, all of which were dismissed. In the course of proceedings, he argued that the Trust had acted in breach of Article 8 because it had used evidence that related to matters that were essentially private in reaching its decision to dismiss him. However, the ET ruled that Article 8 was not engaged.

Mr Garamukanwa appealed against that decision, arguing that whilst the police had a right to examine material that was private and personal, his employer did not.

The EAT dismissed the appeal. The ET had approached the matter in accordance with the guidance given in X v Y and had made concrete findings of fact that the anonymous emails had impacted on work-related matters, were sent to the work addresses of the recipients and dealt in part with work-related issues. Furthermore, the sending of those emails had an adverse effect on other employees to whom the Trust owed a duty of care. These were all features that entitled the ET to conclude that Article 8 was not relevant in the circumstances because Mr Garamukanwa had no reasonable expectation of privacy in respect of the material.

Permission to appeal to the Court of Appeal was refused.

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