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4 May 2016 | Comment | Article by Louise Price

Garamukanwa v Solent NHS Trust – A further invasion of employees’ rights to privacy at work?

The facts of the latest case to be appealed to the Employment Appeal Tribunal (EAT), Garamukanwa v Solent NHS Trust demonstrate just how “messy” the work can sometimes get and the difficulties that employers face when professional and personal worlds collide.

The case concerns the actions of a clinical manager (“Mr G”) who formed a personal relationship with a female nurse, (“Ms M”). When their relationship broke down, a jealous Mr G (who suspected that Ms M had commenced a relationship with a female colleague) sent emails of a malicious nature from various fictitious email addresses to work colleagues and members of the Trust’s management. Ms M complained about Mr G to the police and he was investigated for stalking and harassment.

Although the criminal case did not ultimately proceed, the Trust dismissed Mr G for gross misconduct and relied on evidence found by the police on Mr G’s private phone. In response, he took legal action against the Trust arguing that they had invaded his privacy and should not have acted on matters that related essentially to his private life.

Mr G’s argument was rejected. The emails were sent to the work addresses of the recipients and dealt, at least in part, with work related matters. The emails had an adverse impact on Ms M’s emotional stability and the corresponding performance of her work. The senior position held by Mr G was also considered relevant as was the fact that he was subject to professional standards.

Although helpful for employers who wish to lawfully monitor their employees, the case must, be treated with a degree of caution. The EAT made clear in its reasoning that there is always a balance to be struck between recognising an employee’s right to privacy and an employer’s interests and cases like this will always be fact-sensitive. Here, the evidence relied upon by the Trust was unearthed following the criminal investigation conducted by the police. This was not a case where the Trust went “fishing” for the proof itself, but clearly once it had obtained the evidence, it couldn’t ignore it. The EAT confirmed that it was acceptable to do so.

Author bio

A highly specialised lawyer, Louise is a Partner and Head of Employment and HR services. Her expertise includes corporate support work, TUPE, pensions and employee benefits advice. She regularly advises private, public and third sector clients regarding large scale TUPE transfers of staff including drafting indemnities and warranties, advising on potential employment and pension liabilities, information and consultation obligations, and providing best value guidance.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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