Employment Briefing

Published byMartin Stephen

5th May 2016

Emails and the Employee’s Right to Privacy

The recent case of Garamukanwa v Solent NHS Trust has confirmed that an employee’s right to privacy under Article 8 under the European Convention on Human Rights  is not engaged where an employer investigates an employee’s emails to a work colleague containing personal information which has an impact on the workplace.

The Claimant, Mr Garamukanwa, was a clinical manager for the Trust who had formed a personal relationship with a staff nurse, Ms McLean. The Claimant suspected that Ms McLean had formed a relationship with another colleague, Ms Smith. Actions on the part of the Claimant included creating a fake Facebook account eliciting private details to 150 Trust employees and sending anonymous emails to both Ms McLean’s manager and the Claimant’s manager concerning personal details about Ms McLean and Ms Smith and colleagues within the Trust. Ms McLean complained to the police who investigated the matter and the Claimant was suspended on full pay.

An external person was brought in to carry out a disciplinary investigation. She was provided with evidence from the Police which indicated that the Claimant had carried out these actions. The Police advised the investigating officer that the Trust was entitled to use this material in the investigation. Based on this evidence, the Claimant was summarily dismissed for gross misconduct. The Claimant appealed externally on the basis that the Trust had breached his Article 8 rights under the ECHR, by failing to respect his right to a private life by examining matters which related purely or essentially to his private life and by using evidence in relation to such as a means to justify his dismissal.

The Claimant was unsuccessful before the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) dismissed his appeal and held that the ET had been entitled to find that the Claimant’s right to privacy had not been compromised because the Claimant had no reasonable expectation of privacy on the basis that while the investigation concerned a personal relationship with a work colleague, the Claimant had brought this into the workplace creating a work-related issue. The emails of particular concern were sent to work email addresses and had an effect on other employees for whom the Trust owed a duty of care and raised concerns about the Claimant’s relationship with the Trust and in any event, the content of the e-mails sent to Ms Maclean’s private email address had not been purely personal but had also touched on workplace issues.

The EAT also considered it significant that the Claimant had not objected to the use of the material at any time during the internal investigation and disciplinary proceedings. It was only raised before the ET.

What are the implications of this decision? The EAT was satisfied that the employer could use all of the material provided by the police, including photographs sent from the Claimant’s iPhone.  Given the nature of the emails and the fact they impacted on work colleagues, the Claimant had no reasonable expectation of privacy. Further, Garamukanwa helps to clarify the lines which are blurred between an employee’s personal and working life. It is clear that where relationships or actions which are personal in nature have an adverse effect on fellow employees, for whom the employer is responsible, the employee has no right to privacy.   

The WJM Employment Team recommends all employers have a Computer and Internet Policy.

 Extension of the Early Conciliation Period

In the case of Tanveer v East London Bus and Coach Company Limited the EAT held that the “corresponding date” rule applies when calculating the one month extension period afforded under the early conciliation rules which were introduced on 6 April 2014 and became a mandatory process for claims presented on or after 6 May 2014.

The limitation periods for claims to which early conciliation requirements apply can be extended to take account of the early conciliation period. In order to determine how the date is extended it is necessary to identify Day A i.e. the day ACAS is contacted by the prospective claimant or alternatively, the day ACAS receives the early conciliation form and Day B i.e. the date on which the prospective claimant receives the early conciliation certificate to allow them to commence proceedings.

Section 207B(3) of the Employment Rights Act 1996 provides the mechanism for “stopping the clock” to account for early conciliation proceedings when determining the time period to which a prospective claim can bring a claim. The rules provide that “If a time limit set by a relevant provision would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period”

However, (perhaps not surprisingly) there has been confusion as to the specific date on which the time limit expires which has now been clarified in the case of Tanveer. It was held where the claimant received his early conciliation certificate on 30 June, the extension period under section 207B(4) meant that the relevant limitation period, which would ordinary have expired on 19 June, expired on 30 July.

WJM’s Employment Team says this case has cleared up any ambiguity which resulted from the HMCTS leaflet, Making a Claim to an Employment Tribunal, which had previously set out a view that the deadline would be the corresponding date, less a day. Furthermore, it’s good to see a clear period of time-bar being identified by the Tribunal, which should always be kept in mind when raising proceedings or defending proceedings once the early conciliation period has expired.

Unlawful Religious Discrimination in the Workplace

In Wasteney v East London NHS Trust the EAT held  that warning an employee who had attempted to convert Muslim colleagues to Christianity was not unlawful religious discrimination.

Ms Wasteney was a Christian, against whom complaints were made by junior Muslim colleagues. These complaints related to various interactions Wasteney had with them,  including praying with them, providing literature to converting to Christianity and inviting them to attend various services and events at her church. The Trust investigated these complaints and found Wasteney guilty of serious misconduct by blurring professional boundaries and subjecting junior colleagues to improper pressure and unwanted conduct. She was given a formal warning which she claimed amounted to unlawful religious discrimination and harassment.

The EAT confirmed the finding of the ET and said that there is  a distinction to be drawn between merely manifesting a religious belief and improperly promoting religious beliefs in a way that was not consensual and took advantage of a subordinate relationship. The former could result in discrimination and the latter could not.

This case provides a useful reminder that taking action against an employee because of religious conviction or persuasion is not necessarily discriminatory. The WJM Employment Team recommends caution when dealing with sensitive issues such as this.

Contact with Employees during Periods of Sick Leave

We are often asked by employers if they can contact employees while they are on sick leave to discuss, for example, disciplinary matters. The answer is it depends on a number of factors and employers must proceed with caution.

In a recent case the EAT upheld an employee’s claim of constructive dismissal based on an approach made to her while she was on sick leave, for what was accepted to be a disability. The Claimant had returned from a period of sick leave in September 2013 and various adjustments had been put in place as recommended by the employer’s occupational health specialist. However the employer failed to implement two specific adjustments which had been recommended.

The Claimant had a further period of sick leave in October 2013. Her fit note made reference to bullying by her line manager and the managing director. The CEO wrote to her asking if she wanted to take out a grievance and the Claimant replied saying she was too upset and unwell to do so.

The CEO then wrote to the Claimant suggesting a meeting and setting out six areas of concern that he wanted to discuss. The Claimant resigned claiming constructive dismissal in the letter was intended to illicit her resignation. She brought claims of constructive dismissal, discrimination arising from disability, harassment and failure to make reasonable adjustments.

She succeeded in her disability harassment and constructive dismissal claims and also in her claim for a failure to make reasonable adjustments. The ET held that the employer should have known that the letter would have caused her distress.

On appeal the EAT overturned the disability and harassment claims but upheld the constructive dismissal claim. The issues raised by the employer in its letter were not serious and did not need to be dealt with at that stage and while the employee was very ill.

WJM’s Employment Team says this does not mean that employees cannot be contacted when on sick leave, but caution must always be exercised. Employers should ask themselves if it is really necessary for contact to be made. How serious is the issue and why can it not wait until the employee is well? Will the contact exacerbate the employee’s condition?