In Garamukanwa v Solent NHS Trust UKEAT/0245/15, the Employment Appeal Tribunal (EAT) held that an employee did not have a reasonable expectation of privacy under Article 8 of the European Convention on Human Rights in respect of emails sent to a work colleague and photos on his mobile telephone that the police had passed to his employer.
This was because the material related to a personal relationship with a work colleague which had become a workplace issue by virtue of the employee’s conduct. In particular, the employee had been found to have sent malicious emails to his colleague and another colleague whom he presumed she had become romantically involved with. It was noted that employees suffered distress as a consequence and to an extent that could have an adverse effect on work they were performing in the course of their duties.
The aspects of private life capable of falling within Article 8 are potentially wide. They extend to private correspondence and communications including, potentially, emails sent at work where there is a reasonable expectation of privacy. Whether or not there is an expectation of privacy in an individual case must, however, depend upon the facts and circumstances of each case. These are fact sensitive questions and legal advice should be taken.
3rd May 2016