Following on from Nicola’s previous article on dealing with employees accused of criminal offences during employment, we take a look at a recent case (Garamukanwa v Solent NHS Trust) concerning an employee who was dismissed based on evidence passed to his employer from the police, but where no criminal charges were brought against him. The question in this case was whether the employer had breached the employee’s right to respect for private life under the European Convention on Human Rights (ECHR).
Mr Garamukanwa worked for the Solent NHS Trust and had a personal relationship with a colleague, Ms Maclean. After their relationship ended, Mr Garamukanwa suspected that Ms Maclean had started a relationship with another colleague, Ms Smith. Mr Garamukanwa sent emails to the work email addresses of both women, threatening that if they did not tell their manager about their relationship, he would.
An anonymous letter had already been sent to their manager, expressing concern about inappropriate sexual behaviour between Ms Maclean and Ms Smith at work. When the manager spoke to them about it they denied any inappropriate behaviour or that they were in a relationship at all. Ms Maclean suggested that the anonymous letter may have come from Mr Garamukanwa. When Ms Maclean received the email from Mr Garamukanwa, she reported it to her manager, as she felt threatened. The manager spoke to Mr Garamukanwa on an informal basis and explained that the email was inappropriate. The manager also showed Mr Garamukanwa the anonymous letter, but he denied that he had written it.
As time went on, a fake Facebook account was set up in the name of Ms Smith and anonymous, malicious, emails were sent from various email addresses to staff and managers at the Trust. After receiving an email containing unpleasant personal comments, Ms Maclean went to the police and gave a witness statement. The police carried out an investigation, during which the Trust suspended Mr Garamukanwa on full pay. Mr Garamukanwa was arrested, but no charges were brought.
The Trust then carried out its own investigation. The Trust’s investigatory officer met with the police, and was given copies of the evidence collected by the police, including photographs found on Mr Garamukanwa’s phone of Ms Maclean’s home address and of a sheet of paper containing details of the email addresses from which the anonymous emails had been sent. The investigatory officer asked the police if the Trust could use the police evidence in its investigation, and was told that this was permitted.
The investigatory officer found that there was sufficient evidence to link Mr Garamukanwa to some of the emails and she recommended that the matter proceed to a disciplinary hearing.
The Trust’s disciplinary officer, relying on the photographs found on the phone, concluded that Mr Garamukanwa had been responsible for sending the emails. Mr Garamukanwa was dismissed for gross misconduct, and his appeal against the Trust’s decision failed.
As we reported in our previous article, the employer is not bound by the same standard of proof as the criminal courts – the evidence is considered on ‘the balance of probabilities’ rather than ‘beyond reasonable doubt’.
Mr Garamukanwa brought a number of Tribunal claims, including unfair dismissal, and alleged that his employer had breached his right to a private life under Article 8 of the ECHR. All of the claims were dismissed by the Tribunal. The Tribunal found that:
- The anonymous emails were sent to work addresses and dealt with work-related matters.
- As a result of the emails, Ms MacLean and Ms Smith suffered distress which could have an adverse effect on their work.
- The Trust was entitled to take a serious view of Mr Garamukanwa’s actions, should he be found responsible for the emails.
- The investigation and disciplinary had been carried out professionally, independently and without pre-determination.
- The Trust could not reasonably be expected, as argued by Mr Garamukanwa, to have interviewed up to 40 people on the ward and carried out forensic tests in relation to the evidence.
- The fact that Mr Garamukanwa had denied his involvement throughout could be taken into account and be reflected in the penalty.
- Mr Garamukanwa’s dismissal was within the range of reasonable responses of a reasonable employer and therefore fair.
Mr Garamukanwa appealed to the Employment Appeal Tribunal (EAT), solely in relation to the Article 8 issue.
On appeal, Mr Garamukanwa argued that there was a distinction between public material (the anonymous emails sent to the Trust’s employees) and private material (emails he sent to Ms Maclean about their relationship and the photographs on his phone which were not sent to anyone). Mr Garamukanwa argued that the Trust had no right to look at the private material and that he had a reasonable expectation that it would remain private. He argued that without the private material, which was critical to the Trust’s decision, his dismissal would not have been fair.
The EAT acknowledged that private life under Article 8 includes private correspondence and communications which could potentially include emails sent at work where there is a reasonable expectation of privacy. However, whether or not there is an expectation of privacy in an individual case will depend upon the facts and circumstances of that case.
In dismissing the appeal, the EAT held that the Tribunal was entitled to consider all of the material together without drawing a distinction between private material and the anonymous emails. Whilst the matter related to a personal relationship with a colleague, it was brought into the workplace by Mr Garamukanwa himself and concerned work related issues.
It was noted as being significant that Mr Garamukanwa had not objected to the use of any of the evidence during the investigation or disciplinary procedure, and he had not raised any Article 8 issues prior to his Tribunal hearing.
It was also noted that it was difficult to see how Mr Garamukanwa could have any further expectation of privacy when sending emails to Ms Maclean, even to her private email address, once she had already complained about feeling harassed by the earlier email and Mr Garamukanwa had been spoken to about it by the manager.
This interesting case did not, however, consider that the private material should have been returned to Mr Garamukanwa once a decision not to prosecute had been made, and that it should not have been disclosed to a third party, such as the employer, without Mr Garamukanwa’s consent or by way of a court order. CPS guidance states that “the presumption of innocence can only be undermined if the CPS or police were to release evidence enabling individuals to trawl through it to determine why the person was suspected in the first place”.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).