Privacy in the Workplace?

Audrey Williams
Audrey Williams

Personal relationships at work are often a source of concern and some confusion for employers. Should it be accepted as part of the reality of modern workplaces? Or should employers recognise that such relationships have an impact on the working environment and thus adopt the position that it is legitimate to intervene when it comes to light? This is not so much on the basis of moral indignation but to protect work colleagues, where resentment or worse feelings may arise and the potential risk of a relationship breaking down.

When a relationship is suspected how far can an employer investigate, accessing personal emails for example? Or is there an obligation to respect employees’ privacy?

When things go sour

A recent Appeal Tribunal case shows just how difficult such situations can become and illustrates the balance expected between the right to privacy and legitimate intervention. In Garamukanwa v Solent NHS Trust problems arose after G’s relationship with a staff nurse ended and he began to suspect her of starting a relationship with another member of staff. He sent both of them emails, threatening to inform their manager if they did not and a letter was also sent anonymously to the manager alleging an inappropriate sexual relationship, which was denied.

An unpleasant campaign then began using fake accounts, Facebook and more anonymous emails. The staff nurse complained to the police who investigated the matter but brought no charges.

This then left matters to the Trust to deal with and conduct their own investigation. The police provided the investigating officer in the Trust with photos from G’s mobile, others found at his home, and information including a notebook. G was dismissed for gross misconduct for sending malicious emails, relying on the evidence supplied by the police.

Unfair and invasion of privacy?

In the subsequent claim for unfair dismissal G accused the Trust of breaching his Article 8 right to privacy by relying on issues to do with his private life. The Tribunal was very clear that the circumstances here were impacting on the employment relationship and work matters; that being the case, the Trust was entitled to rely upon the evidence, investigate and address concerns especially given the fact:

• emails were being circulated using work addresses;
• the issues and allegations raised concerned the work environment and relationships; and
• was impacting on other employees.

The EAT agreed rejecting G’s argument that there was a distinction between the police using private emails and the Trust – or that the Trust should have distinguished between the public emails sent to Trust employees and his private information ( the notebook and photographic evidence).

Limits to privacy in work

The EAT reiterated that whilst the material might have been private, it was G who by his actions had brought personal matters and the personal relationship into the workplace. Even though some of the earlier emails to the staff nurse had been sent to her personal email address, because she had raised a complaint about them and G, he could not expect the employer not to address the concerns raised.

The passing of evidence seized from G to the employer is surprising here and an employer would be well advised to treat such information with caution. However, what is clear from this case is that where personal issues and private relationships begin to impact the work environment, privacy rights are likely to come second especially where other individuals are facing consequences.

The writer has experience of many cases where evidence from personal devices and work equipment has been accessed and produced as part of an investigation, and in a range of content (videos, security footage, text messages). This case emphasises the need to weigh carefully the relevance and ability to make use of such evidence, and the personal rights of individuals in the workplace.

Audrey Williams is a Partner in the HR law team at Fox Williams LLP

Amwilliams@foxwilliams.com

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