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22nd May 2016

Monitoring an employee’s emails and the right to privacy

In January this year (see “Monitoring employees’ use of the internet – the reality” from 31st January 2016 for the details) we reported on the European Court of Human Rights decision in Barbulescu v Romania surrounding the monitoring of employee emails and the right to privacy.

The UK Employment Appeals Tribunal has also now considered the interaction between an employer’s monitoring of emails and Article 8 of the European Convention on Human Rights, being the right to respect for private life, in the case of Garamukanwa v Solent NHS Trust 2016.

Mr Garamukanwa was a clinical manager for the NHS Trust and formed a relationship with Ms McLean who was a Staff Nurse. The relationship soured when Mr Garamukanwa suspected Ms McLean of also being in a relationship with a female colleague, Ms Smith.

The NHS began to receive a number of malicious emails from anonymous email accounts and Ms McLean considered that Mr Garamukanwa was both stalking and harassing her. The NHS Trust investigated and found that there were a considerable number of emails on Mr Garamukanwa’s mobile phone which implicated him in the malicious emails. Mr Garamukanwa was summarily dismissed for gross misconduct and subsequently failed in his claim for Unfair Dismissal.

One of Mr Garamukanwa’s arguments during the tribunal proceedings was that the NHS Trust had breached his right to a private life by examining emails which related solely or mainly to his private life. The tribunal rejected this and considered that the emails were, at least in part, work-related. Mr Garamukanwa appealed.

The Employment Appeals Tribunal rejected Mr Garamukanwa’s appeal. The EAT considered the guidance which already existed in the case of X v Y which states that Article 8 does extend to protect private correspondence which can include work emails where there is a reasonable expectation of privacy. However, given that the emails sent by Mr Garamukanwa were to work colleagues and impacted on work-related matters as well as the fact that Mr Garamukanwa was a manager of the NHS Trust, the NHS Trust was entitled to consider these emails.

The EAT held that Article 8 was not engaged as Mr Garamukanwa had no reasonable expectation of privacy in relation to these emails.

It is still important for employers to note that this this does not open the door to extensive monitoring of all employee correspondence. Article 8 can extend to work emails in circumstances where an employee may have a reasonable expectation of privacy. Employer’s monitoring should be reasonable and proportionate. It is therefore advisable for an employer to ensure that they have in place a clear and fair Internet and Email Communications Policy to:

  1. Ensure that employee’s do not have a reasonable expectation of privacy when using the work email system; and
  2. Ensure that employees are aware that monitoring takes place, who may undertake the monitoring and the business reasons for doing so; and
  3. Sets out the boundaries of legitimate use and what may result in disciplinary action.

Oliver McCann, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor

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