Article 8 (Right to Privacy) not Engaged by Employer Investigating Employee’s Emails

Garamukanwa v Solent NHS Trust UKEAT

This appeal raises the question whether the Employment Tribunal dealt properly with the Article 8 issue raised by the Claimant below in relation to the use by the Respondent for internal disciplinary purposes of private material seized by the police in the course of a criminal investigation and to which the police gave the Respondent access after the criminal investigation came to an end. The Claimant was dismissed after the police disclosed the information they had obtained on the Claimant. The Employment Tribunal concluded that the Claimant 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. The Claimant appealed on the basis that he had a reasonable expectation that the private material would remain private and Article 8 was accordingly engaged.

The EAT dismissed the appeal.

The Employment Tribunal was fully entitled to conclude in relation to all of the material provided to the Respondent by the police following the criminal investigation that the Claimant had no reasonable expectation of privacy in that material. That conclusion was open to the Tribunal and meant that Article 8 was not relevant in the circumstances. An application to appeal to the Court of Appeal was refused.