Garamukanwa v Solent NHS Trust (Unfair Dismissal) [2016] UKEAT 0245_15_0103

EAT
Garamukanwa v Solent NHS Trust (Unfair Dismissal)
[2016] UKEAT 0245_15_0103 · 2016-03-01
[1]This appeal raises the question whether the Employment Tribunal dealt properly with the Article 8 issue raised by the Claimant below in relation to the use by the Respondent for internal disciplinary purposes of private material seized by the police in the course of a criminal investigation and to which the police gave the Respondent access after the criminal investigation came to an end. The appeal is from a Judgment with Reasons promulgated on 23 March 2015 following a hearing at the Employment Tribunal to deal with claims by the Claimant against the Respondent for unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal. All claims failed and were dismissed by the Tribunal.[2]I refer to the parties as they were below. The Claimant is represented by Mr Joe Sykes. The Respondent resists the appeal and is represented by Ms Rehana Azib of counsel. Both appeared below. The Facts[3]The facts can be taken from the Tribunal’s Reasons. The Claimant was employed by the Respondent from 16 October 2007 as a Clinical Manager for the Mental Health Liaison Team and the Crisis Resolution Home Treatment Team. He reported to Kieron Kinsella. The Tribunal found that he formed a personal relationship with Staff Nurse Lauren Maclean, which came to an end in May 2012. After the relationship ended, the Claimant suspected that Ms Maclean had formed a relationship with a Healthcare Support Worker on the Hawthorns Ward called Debbie Smith. At paragraph 23 the Tribunal referred to the Claimant’s witness statement where he said he remained fond of Ms Maclean and felt that the relationship with a junior member of staff on the same ward was potentially not in the interests of patients on the ward as there could be a conflict of interest between patient care and emotional priorities and loyalties.[4]On 21 June 2012 the Claimant emailed a friend of Nurse Maclean raising concerns about the situation. The friend responded saying, “leave Lauren in peace”. The Tribunal found that on 25 June 2012 the Claimant emailed Ms Maclean and Ms Smith at their work email addresses raising their alleged relationship and telling them that unless they informed their manager about the relationship he would do so himself. By that time an anonymous letter had been sent to their manager, Mr Brown, dated 16 June 2012. It purported to come from a concerned member of staff with the address being the Hawthorns Ward. The Tribunal found that the letter included the following sentences:
“I am increasingly concerned when I see that Lauren and Debbie are on nightshift together. I witnessed some inappropriate sexual behaviour between the two, during their break recently. I have been stressed out and feel uncomfortable, when I have to work with them.”
[5]Mr Brown spoke to Ms Maclean and Ms Smith. They denied any inappropriate conduct and said that they were not in a relationship in any event. Ms Maclean suggested that the Claimant may have been the author of the anonymous letter as she had ended their relationship recently and the Claimant believed she left him for Ms Smith. Having received the email dated 25 June 2012, Ms Maclean approached Mr Brown expressing her distress about the email and saying that she felt threatened. Mr Brown spoke to the Claimant informally about the email, making it clear that he felt it had been inappropriate. Mr Brown said that the Claimant appeared to acknowledge what he had said, apologised and agreed it was a private matter between himself and Ms Maclean. Mr Brown showed him the anonymous letter, the Claimant denied writing it, and Mr Brown told the Tribunal that he had no reason to disbelieve the Claimant in that regard.[6]Thereafter over the period between June 2012 and April 2013 the activities of what on the face of it appeared to be a person whose identity was unknown, but who appeared to have a vendetta against Ms Maclean and Ms Smith, began to develop further. For example, a fake Facebook account was set up in the name “Debbie Smith”, to which the names of approximately 150 work colleagues were added, and anonymous emails were sent from various different email addresses to members of the Respondent’s management, including Mr Brown, Mr Kinsella and others. These were bogus email addresses in various forms, including “deesmith”, “katieprice” and “notflorencenightingale”. The Tribunal records that it was taken to and considered at length the various emails. I too have been shown a number of these emails. The Tribunal held in relation to the emails that:
“26. … there is no doubt, not contested on behalf of the claimant, that the e-mails were malicious in nature and content and were designed to, or at least had the effect of, causing distress to Ms Maclean and Ms Smith as well as concern and disruption to management. …”
[7]It was also clear, the Tribunal said, from the content of some of the emails that the author was aware of the personal activities of Ms Maclean and Ms Smith and was most likely following them on occasions. The Tribunal found that Ms Maclean was becoming concerned that the Claimant himself had been harassing and stalking her. There was a specific occasion, 26 August 2012 (the August Bank Holiday) when Mr Brown saw a person driving down Locksway Road who he thought was the Claimant. Subsequently, Ms Maclean complained that the Claimant had followed her and Ms Smith to work that morning. On questioning, the Claimant denied it, saying that he was in Bournemouth that weekend, but subsequently he accepted that was not true, that he was the person driving the car seen by Mr Brown, but that he had an urgent and genuine reason for visiting the hospital on that occasion.[8]On 11 April 2013 another email was sent from the “katieprice” email address to a large number of members of staff from the wards, including Mr Brown, Ms Maclean and Ms Smith. The email contained unpleasant personal comments. As a consequence of her concerns, on receipt of this email Ms Maclean approached the police and made a witness statement in support of her complaint. PC Burns confirmed that following this complaint there were serious concerns with regard to the Claimant’s behaviour, and the matter was then investigated by the police. PC Burns, however, told the Respondent that it was a matter for the Respondent to decide whether or not to suspend the Claimant, but any decision not to do so may have to be justified in due course. The Claimant was in fact suspended, following a meeting on 12 April 2013, and was told that suspension was a neutral step in light of the investigation and that he would continue to receive full pay. A letter was sent to him confirming that. On 24 April 2013 the police attended the Claimant’s home and arrested him but eventually determined that no charges would be brought.[9]Nonetheless, the Respondent decided to investigate the issues and appointed Lin Burton to carry out that investigation. She was considered to have adequate qualifications and experience to do so and was, the Tribunal found, sufficiently removed from the situation to ensure independence. Mrs Burton met with DC Ryan on 6 November 2013 to discuss evidence already provided by the police to Mr Kinsella, including the witness statement prepared by Ms Maclean and the record of the interview with the Claimant. The Tribunal found that:
“33. … Of special importance, however, she was provided with copies of photographs found by the police on the claimant’s iPhone which included photographs of what was established by the police as having been Ms Maclean’s home address and also a photograph of what appeared to be a sheet from a notebook which actually contained details of the e-mail addresses from which the malicious e-mails referred to above had been sent.”
[10]Mrs Burton raised specifically with DC Ryan whether the Respondent was permitted to use the police evidence in its investigation, and he confirmed, having spoken with the police solicitor, that it was permitted to do so. Following her investigation Mrs Burton produced a lengthy and comprehensive report recommending that allegations against the Claimant should proceed to a disciplinary hearing. The Tribunal did not set out the contents of the report in detail, but summarised the position as being that there was insufficient evidence in relation to some of the anonymous complaints to link the Claimant to them or to establish that he was responsible for setting up the false Facebook profile. However, Mrs Burton concluded that there was sufficient evidence to link the Claimant to the “katieprice” and “deesmith” emails, and the Tribunal said that the key evidence upon which Mrs Burton relied was photographs of those email addresses on the Claimant’s iPhone, for which the Claimant could provide no reasonable explanation.[11]A disciplinary hearing took place between 17 and 23 December 2013. The dismissing officer was Mr Hall. He concluded, as the Tribunal recorded it:
“38. … principally in reliance upon the photographs on the claimant’s iPhone, he was responsible for sending the e-mails identified by Mrs Burton. …”
[12]He concluded that the conduct amounted to gross misconduct warranting summary dismissal, and the Claimant was duly dismissed on that basis. The Claimant appealed the dismissal decision. The appeal was heard by Mrs Whitfield on 31 January 2014, but the appeal was also dismissed. The Tribunal’s Conclusions[13]I do not address the Tribunal’s conclusions in relation to race discrimination and the other heads of claim but focus on those parts of the conclusions that are relevant to this appeal. At paragraph 49 the Tribunal recorded an argument advanced on the Claimant’s behalf that had not been pleaded or referred to in the Claimant’s witness statement to the effect that the Respondent had acted in breach of the Human Rights Act 1998 (“HRA”) and Article 8 of the European Convention on Human Rights and Fundamental Freedoms by failing to respect the Claimant’s right to a private life and by examining matters that related purely or essentially to the Claimant’s private life; and had used evidence in relation to such matters to justify the decision to dismiss.[14]At paragraphs 55 to 59 the Tribunal reached important conclusions, as follows:
“55. So far as the unfair dismissal claim is concerned, the Tribunal was unanimously satisfied that the conduct of the person who sent the anonymous e-mails had an impact or potential impact on work related matters and accordingly the employment relationship between the claimant, if he was responsible, and the respondent. The e-mails were sent to the work addresses of the recipients and dealt at least in part with work related matters. The impact in particular on Ms Maclean but also Ms Smith was such that it was likely to and did affect their emotional stability and cause distress to an extent that it could have an adverse effect upon the work which they were performing in the course of their duties. Furthermore, although this was not the subject of a specific allegation against the claimant, if he was responsible for sending the malicious e-mails in question, that brought into play proper concern on the part of the respondent as to the duty of the claimant, having regard to his senior position and the fact that he was subject to professional standards, to behave in an appropriate manner. The respondent was entitled to take a serious view as to his actions, should he be found to have been responsible for the e-mails in question. 56. The Tribunal finds that the relevant provisions of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights did not engage in this particular case for the reasons identified above. Nevertheless, the Tribunal also had regard to its obligation to construe legislation in a manner which is compatible with the Convention and did so. 57. The Tribunal was satisfied, having carefully considered the evidence, that all of the respondent’s officers involved in the investigatory, disciplinary and appeal processes acted professionally, independently and without pre-determination. The investigation that was carried out was not only, in the Tribunal’s judgment, as reasonable as could be expected in the circumstances but was extremely thorough. The argument advanced by Mr Sykes on behalf of the claimant that the respondent should have interviewed up to forty people on the ward in question and carried out extensive forensic tests in relation to the evidence before it was not, in the Tribunal’s judgment, having regard to proportionality and likely results, something which could be reasonably have expected [sic] of the respondent. It has to be remembered that the standard of proof in criminal cases is high, whereas in cases such as this [it] is based on the balance of probabilities. 58. The Tribunal was unanimously satisfied that the respondent, and in particular the Dismissing Officer Mr Hall, was entitled to form the conclusion on the balance of probabilities that the claimant was responsible for at least some of the e-mails. They were, in the Tribunal’s judgment, not seriously disputed by the claimant, of a malicious and improper nature and, of course, the fact that they were anonymous was in itself an aggravating feature which was likely to cause alarm and distress to the recipients, which in the Tribunal’s judgment they did. 59. Having, in the Tribunal’s judgment, justifiably concluded that the claimant was so responsible, the Tribunal then had to consider whether the decision to dismiss was far in all the circumstances. Mr Sykes urged the Tribunal to accept as mitigating factors the absence of absolute proof that the claimant was responsible. The Tribunal does not accept that contention. Such matters are relevant as to whether it was reasonable for the respondent to determine that the claimant was, indeed, responsible for the e-mails but, having once concluded that he was, those factors did not amount to mitigation as to penalty. The Tribunal was satisfied, however, that Mr Hall took into account, as did Mrs Whitfield, the claimant’s previous good character but properly concluded, in the Tribunal’s view, that in the particular circumstances the actions of the claimant amounted to gross misconduct such as to justify dismissal. Furthermore, although this was not in itself a reason for dismissal, the fact that the claimant throughout denied his involvement in them, was a factor which could properly be taken into account in compounding the seriousness of the offence and be reflected in the appropriate penalty.”
[15]Accordingly, and in those circumstances, at paragraph 60 the Tribunal found that the decision to dismiss was within the range of reasonable responses for a reasonable employer and was therefore fair. It also held that the evidence justified a conclusion that the Claimant was guilty of gross misconduct so that the wrongful dismissal claim also failed. The Appeal[16]The applicable law so far as relevant to this appeal is not in dispute. It is the application of the principles to the facts of this case that has caused controversy. Both the Respondent and the Employment Tribunal are public authorities and are accordingly required to act compatibly with Convention rights, and, in the case of the Tribunal, it is required by the HRA 1998 , section 3, to read and give effect to the Employment Rights Act 1996 (“ERA”) in a way that is compatible with Convention rights. Article 8 of the Convention affords a qualified right to respect for private and family life, permitting state interference with that right in specified circumstances. It provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[17]Guidance was given in XvY [2004] ICR 1634 by the Court of Appeal (Mummery LJ) as to how in the context of unfair dismissal cases Tribunals should deal with Article 8 when it is raised. Mummery LJ explained that the short answer to the dismissed employee’s case in XvY was correctly given by the Tribunal when it held that Article 8 was not engaged. The word “engage” was used in the sense of “relevant” and was a prior and distinct question from the question of any possible breach of the relevant Convention right. In that case, the conduct did not take place in the employee’s private life, nor was it within the scope of application of the right to respect for private life, because it happened in a place to which the public had and were permitted to have access. It was a criminal offence leading to a caution and was relevant to the employee’s employment and should have been disclosed. Article 8 had no relevance, and the question of any possible breach did not arise. Although the employee wished to keep the conduct and caution private, that did not make it part of his private life or deprive it of its public aspect: paragraph 52.[18]At paragraph 59 Mummery LJ dealt with the compatibility of section 98 ERA with Article 8. He concluded that considerations of fairness, the reasonable response of a reasonable employer, considerations of equity and substantial merits ought when taken together to be sufficiently flexible without even minimal interpretive modification under section 3 HRA to enable a Tribunal to give effect to applicable Convention rights, and in general he held that the reasonable expectation is that a decision that a dismissal is fair under section 98 would not be incompatible with Article 8. There would be no need to invoke section 3 in order to achieve a result compatible with Article 8, though he anticipated that there might be cases where the HRA point could make a difference to the reasoning of the Tribunal and even to the final outcome. Despite that conclusion, given the breadth and flexibility of the concept of fairness used in section 98, he concluded that it was difficult to conceive of a case in which the unjustified interference with private life rights under Article 8 would not also render a dismissal unfair under section 98. A similar approach to that adopted by Mummery LJ was adopted by Elias LJ in Turner v East Midlands Trains Ltd [2012] EWCA Civ 1470 at paragraph 52.[19]Having dismissed the appeal in XvY , at paragraph 64 Mummery LJ provided a series of questions by way of a framework for addressing the relevance and impact of Convention rights in the context of unfair dismissal cases between private litigants. The first question to be asked is whether the circumstances of the dismissal fall within the ambit of one or more of the Articles of the Convention . Unless they do, the rights are not engaged and need not be considered further. The Appeal[20]The Claimant’s appeal in relation to Article 8 is ground 1 of the Notice of Appeal (paragraphs 1.1 to 1.3). This is the only ground on which he has permission. He contends that the emails and other material he sent, together with the photographs, were entirely private and personal. While the police had a right pursuant to the derogation of criminal law enforcement to look at his private emails, the Respondent had no such right. Having obtained such material from the police, the Respondent failed to consider and address the distinction between public material such as the anonymous email sent to the Respondent’s staff and managers and the private material sent by the Claimant directly to his former girlfriend about his private feelings and their relationship including the photographs on his iPhone, which were not sent to anyone. So far as that latter material - together referred to as “the private material” - is concerned, it is argued that the Claimant had a reasonable expectation that the private material would remain private and Article 8 was accordingly engaged. The Tribunal did not recognise the distinction between the private material, in respect of which he had a reasonable expectation of privacy, and the other material.[21]Moreover, Mr Sykes contends that without the private material, in particular the photographs found on the iPhone, the dismissal would not have been upheld as fair. He points in particular to the findings of Mrs Burton and Mr Hall, which recognise the importance of the photographic evidence found on the iPhone. That was, to use Mr Sykes’ phrase, the clinching material that linked the allegations together. It was therefore critical to the Respondent’s decision and the Tribunal’s findings but unjustifiably breached the Claimant’s Article 8 rights, and that breach was not addressed. The Respondent’s reliance on the private material in dismissing the Claimant and in dismissing his appeal went to the root of the disciplinary allegations, making the dismissal fundamentally unlawful and therefore unfair so that the Tribunal misdirected itself in law in reaching a contrary conclusion.[22]It seems to me that the first question that must be addressed in dealing with the grounds of appeal advanced on the Claimant’s behalf is whether Article 8 was engaged on these facts. That was the first question addressed by the Tribunal. It found that Article 8 rights were not engaged, and if that was a conclusion reached without error of law, it provides a complete answer to this appeal.[23]The aspects of private life capable of falling within Article 8 are potentially wide. They extend to private correspondence and communications including, potentially, emails sent at work where there is a reasonable expectation of privacy. Whether or not there is an expectation of privacy in an individual case must, however, depend upon the facts and circumstances of that case. These are fact sensitive questions.[24]At paragraph 56 the Tribunal found that Article 8 was not engaged. The Tribunal said that this was “for the reasons identified above”. Mr Sykes submits that “the reasons identified above” must refer to all of the findings relating to the unfair dismissal question. Whether that is so or not, it seems to me that it undoubtedly includes paragraph 55. Mr Sykes dismisses paragraph 55 as saying absolutely nothing and making no findings. In his view, at paragraph 55 the Tribunal merely ‘flirts’ with a range of theoretical situations and fails to grapple with Article 8. I disagree with those submissions. Read fairly, at paragraph 55 the Tribunal is engaged in an exercise of addressing the nature and content of the private material, and the circumstances in which it came to be considered as part of the disciplinary process and dismissal decision.[25]Concrete findings of fact are made in this paragraph, albeit that the author and/or sender of the emails is not identified (that is done in subsequent paragraphs). The features particularly identified by the Tribunal at paragraph 55 are:(i) the conduct in sending anonymous emails had an impact on work related matters and the employment relationship between the person responsible for doing that and the Respondent;(ii) the emails were sent to work addresses of recipients and in part dealt with work related matters;(iii) employees of the Respondent suffered distress as a consequence and to an extent that could have an adverse effect on work they were performing in the course of their duties;(iv) the judgment of the person responsible for sending malicious emails was properly brought into question as a proper concern for the Respondent to have about a person in a senior position;(v) the Respondent was entitled to take a serious view of the actions of that person.[26]The Tribunal concluded that the investigation and disciplinary process were conducted professionally, independently and without pre-determination. The process was extremely thorough and reasonable. The Tribunal concluded that the dismissing officer, Mr Hall, was entitled to form the conclusion that the Claimant was responsible for some of the malicious emails. In the Tribunal’s judgment, the emails were of:
“58. … a malicious and improper nature and, of course, the fact that they were anonymous was in itself an aggravating feature which was likely to cause alarm and distress to the recipients, which in the Tribunal’s judgment they did.”
[27]Accordingly, the case that the Tribunal was addressing and in which any Article 8 rights had to be addressed was a disciplinary investigation into matters that, whilst they related to a personal relationship with a workplace colleague, were brought into the workplace by the Claimant himself and were introduced into the workplace as giving rise to work related issues. The emails of particular concern were published to colleagues at work email addresses. The publication of those emails had an adverse consequence on other employees for whom the Respondent had a duty of care, and raised issues of concern so far as the Respondent’s own working relationship with the Claimant or individual responsible was concerned. These are all features that entitled the Tribunal to conclude that Article 8 was simply not engaged and was therefore not relevant because the Claimant had no reasonable expectation of privacy in respect of the private material.[28]It is right that the Tribunal did not distinguish between the private material - the emails sent to private email addresses and photographs obtained from the Claimant’s iPhone - and the anonymous malicious emails sent to work email addresses, but rather treated all of the material together and in the same way without distinction. In the circumstances of this case, the Tribunal was entitled to take that approach. No distinction was made by the police in relation to the material provided to the Respondent. All material obtained by the police was handed over, and permission was given for the Respondent to use all of that material without any distinction being drawn between the emails sent to private addresses and the photographic material found on the Claimant’s iPhone. All of the material was regarded as relevant to the criminal investigation and was handed over as such. As Ms Azib submits, the Respondent did not seek to go beyond the material provided by the police or to expand in any way the parameters of the investigation but simply relied on what had been provided to it by the police.[29]Also significant is the fact that the Claimant did not at any stage object to the use of or reliance on any of the material when faced with the internal investigation and disciplinary proceedings. As the Tribunal recorded at paragraph 49, no reference was made to any expectation of privacy or to the Article 8 arguments at all, either in the pleadings or in the Claimant’s witness statement, but the matters were advanced at the Tribunal in the course of argument and questioning for the first time. Moreover, it does not appear from paragraph 49, where the Tribunal record the submissions made by Mr Sykes, that he drew a distinction between particular emails or photographs, but to the extent that he did it is clear that far from raising an objection himself, the Claimant volunteered additional material to the Respondent and in doing so negated the suggestion that he himself had any expectation of privacy in any of the material.[30]Moreover, from 25 June 2012 (the date when Ms Maclean complained about the email from the Claimant and the fact that she felt harassed by it) it is difficult to see how the Claimant can have had any further expectation of privacy when sending emails to her, even if sent to her private email address and even if those emails referred to their former relationship. From that time onwards there must have been an expectation that she would complain of feeling harassed by his ongoing correspondence with her, and he could have had no expectation of controlling when and where she complained or what she did with emails sent to her. Finally, and in any event, the content of the emails sent to Ms Maclean’s private email address is not purely personal and strays beyond the Claimant’s private feelings towards Ms Maclean, touching on workplace issues as well.[31]In the circumstances, on the facts of this case, the Employment Tribunal was fully entitled to conclude in relation to all of the material provided to the Respondent by the police following the criminal investigation that the Claimant had no reasonable expectation of privacy in that material. That conclusion was open to the Tribunal and meant that Article 8 was not relevant in the circumstances. That conclusion means that it is unnecessary for me to express any concluded view on Article 8.2. However, there are findings that would amply support a conclusion that any interference with the Claimant’s Article 8 rights was justified by the Respondent’s need to protect the health and welfare of other employees and to ensure that they could go about their employment free from harassment from the person responsible for sending malicious anonymous emails into the workplace. The disciplinary allegations raised a serious matter that affected workplace conduct and relationships and the judgment of a senior manager, the Claimant. The investigation was undertaken for serious and not whimsical reasons. The material provided by and with the permission of the police went to the heart of that investigation. The Respondent did not expand the parameters of the investigation but relied solely on the material provided to it by the police. The investigation and the disciplinary proceedings were found to be procedurally and substantively fair, and in those circumstances, had the Tribunal addressed Article 8.2, the inevitable conclusion it would have reached would have been that the interference was justified.[32]For all those reasons, and despite the forceful submissions made on the Claimant’s behalf by Mr Sykes, who has said all he could possibly have said to prosecute this appeal, the appeal fails and is dismissed. Application for Permission to Appeal to the Court of Appeal[33]I am not satisfied that there is any arguable ground of appeal with reasonable prospects of success to justify granting permission to appeal. First, I am not persuaded that there was any error by the Tribunal in concluding that Article 8 was not engaged. In my judgment, read fairly, paragraph 55 makes concrete findings as to why Article 8 was not engaged on the facts and in the circumstances of this case. The only conditionality in paragraph 55 relates to the identity of the person responsible for the impugned conduct. I do not accept as remotely arguable the assertion that there is not a single finding of fact in paragraph 55 as Mr Sykes contends. For that reason too, the second ground of appeal is not arguable. The finding that Article 8 was not engaged means that the question of Article 8 has been fully addressed without the need to go on and consider whether Article 8 was breached. That is an anterior question that was addressed and dealt with by the Tribunal in paragraph 56 without misdirection or error of law.[34]Thirdly, Mr Sykes argues that both the Employment Tribunal and this Appeal Tribunal have erred in law in confusing the public malicious emails with the private emails and in failing to find material justification by the Respondent for the use of photographs in violation of the Claimant’s rights to privacy. That, too, is not arguable, for the reasons given in my Judgment. The Tribunal was entitled to deal with all of the material without distinction in circumstances where that material was handed over to the Respondent by the police with permission for use of all the material without distinction. In the circumstances described, the Claimant had no reasonable expectation of privacy in respect of any of that material. The challenge to that conclusion is not arguable, nor is there any other compelling reason for giving permission to appeal to the Court of Appeal.