Just how personal is too personal?

10th June 2016 at 00:00

IN A RECENT employment appeal tribunal case (Garamukanwa v Solent NHS Trust) an employee sought to assert that an employer’s reliance on his private emails as evidence in a disciplinary process was a breach of his human rights. He relied on Article 8 of the European Convention on Human Rights, which provides that: “Everyone has the right to respect for his private and family life, his home and his correspondence.”

In good news for employers, the tribunal disagreed and found that the trust was able to rely on the email correspondence.

The facts of the case revolved around an acrimonious situation where, following the end of a personal relationship between two work colleagues, one of them alleged that the other was subjecting them to a campaign of harassment. The alleged conduct involved an anonymous letter, a fake Facebook account and malicious emails sent from various bogus email addresses to members of the trust’s management.

The police investigated the matter. No charges were brought, but the police provided the trust with copies of incriminating photographs found on the employee’s phone and information from a notebook linking him to the malicious emails.

The trust then used this evidence in their internal disciplinary process and, following a hearing, dismissed the employee for gross misconduct.

There is often a real challenge for employers as to when they can legitimately challenge an employee’s conduct that takes place in their own time and outside work. It is often a fine line between personal and professional life and one that has become increasingly challenging with the use of email and social media.

The determining factor is whether an employee’s conduct outside of the workplace impacts on the employment relationship, either because of the nature of the conduct and their role, or because of the potential damage to the employer’s reputation.

Without such a link, ACAS guidance makes it clear that taking disciplinary action against an employee for their personal conduct is unlikely to be justified. This case has extended the same principle to the use of potentially private communication.

Critical in the tribunal’s finding that relying on personal correspondence did not breach the employee’s human rights, were that the emails:

were sent to colleagues at work email addresses;

had an adverse consequence on other employees for whom the trust had a duty of care;

raised issues of concern about working relationships.

For schools – where an employee’s conduct outside work is often critical to their professional reputation and that of the school – it is essential to ensure that disciplinary procedures and codes of conduct extend to conduct and communications outside of the workplace.

If this is made clear to employees, it is likely to assist with arguments that it is not too intrusive to rely on this in a disciplinary process. However, equally care must be taken to allow employees to enjoy a private life.

Alice Reeve is a partner at education law firm Veale Wasbrough Vizards

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