Do Employers and the right to Monitor Personal Emails?

18 February 2016

Do employers have the right to monitor personal emails at work? find out more

Do Employers and the right to Monitor Personal Emails?

The internet and e-mail are a part of our everyday lives, no more so than in the workplace.  However the extent to which an employee can use the internet and e-mail for personal use in work, should be regulated by the contract of employment.

A recent decision of the European Court of Human Rights (Barbulescu v Romania 61496/08) has considered whether an employee’s right to respect for private life is breached if an employer monitors their personal communications at work?

At the request of his employers, Mr Barbulescu created a Yahoo account for the purpose of responding to client enquiries. In July 2007 his employer produced a 45 page transcript of his e-mail account usage, which demonstrated that the applicant had used this account to send and receive messages of a personal nature to his brother and fiancée. He was consequently dismissed by his employer. At national level, Mr Barbulescu complained that the decision had been null and void since, by accessing his communications, his employer had violated his right to correspondence protected by the Romanian Constitution and the Criminal Code. His complaint was not upheld. The Applicant then appealed to Bucharest Court of Appeal, where the claim was again dismissed.

The matter then went to the European Court of Human Rights (ECHR) to determine whether the Applicant had a reasonable expectation that his communications would not be monitored. The Court held that the Article 8 right to private life was engaged, but that the State had to strike a fair balance between its positive obligations under Article 8 and the employer’s interests.

The Court found it of particular significance that the employer had not “gone looking” for these messages, but had instead accessed the account in the belief that it contained professional work related correspondence. The Court held that it was not unreasonable for an employer to want to verify that employees are completing their professional tasks during working hours.

The Applicant also did not provide a convincing argument as to why he had used the Yahoo messenger account for personal purposes, given that it had been set up at the request of his employer.

The Court further commented that the investigation was limited in scope in that only the Applicant’s e-mail account had been examined, i.e. no other data and documents which were stored on his computer had been accessed. The Court found that the employer’s monitoring was limited in scope and was proportionate and therefore there was no violation of Article 8.

Employers should be conscious that cases of this nature are fact sensitive and professional legal advice should always be sought before taking disciplinary action against an employee who may have acted in breach of social media or internet/e-mail policies. Indeed, those businesses without policies and procedures to regulate social media and internet should act quickly as it can be very difficult to discipline an employee without these.

Case of Barbulescu v Romania

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