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Is it now easier to snoop on your employees' personal emails at work?

Posted on 22nd January 2016
Must read Case law

The short answer is no. However, from the recent and over-hyped media publicity about this European Court of Human Rights (‘ECHR’) decision, you could easily have concluded that employers now have an unfettered right to snoop on their employees’ personal emails and social media messages. If so, this was the wrong conclusion to draw from this case.

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Simon Quantrill Simon
Managing Partner Telephone: 01473 688100

The key question for the ECHR was whether the employee had a reasonable expectation of privacy when using his Yahoo account at work.

Case of Barbulescu v Romania [2016] ECHR

In fact the decision does not diminish the existing law that governs the monitoring by employers of employees' private emails and other messages. Employees are still entitled to a reasonable expectation of privacy and employers must still comply with the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 which limit the ability to monitor employees’ private communications.

The facts

Whilst it's true that the ECHR decision upheld the employer’s monitoring of the employee’s personal messages the starting point in understanding the merits of this case flow from the facts:

  • The employee was a salesman who was encouraged by his employer to use his Yahoo messaging account for business use.
  • During an internal investigation into the employee’s work performance, the employer accessed the employee’s Yahoo account to check on what the employee had sent to customers. This led the employer to discover that the employee had used the account during working hours to send personal messages to his girlfriend and brother.
  • This personal use was in breach of the employer’s published policy on the use of its computers and Internet at work.
  • When challenged by the employer about his personal use of the Internet during working hours the employee denied any such use. To prove he was lying the employer showed him 45 pages of transcripts of his personal messages.
  • After following a disciplinary procedure the employee was dismissed for acting in breach of this policy.
  • The employee sued his employer in the County Court and lost. The court said the employer had followed the correct dismissal procedure and was entitled to dismiss because the employee had prior notice that personal use of the Internet was not permitted.
  • The court also stressed that the employer was acting reasonably when it checked the content of the employee’s personal messages given he denied any wrong doing.
  • The Court concluded that employers can monitor their employees’ use of the company’s computers in the workplace as a means of checking the manner in which professional tasks are carried out. This right exists provided the employees are made aware that monitoring may take place for legitimate reasons. The court gave, as examples, where an employee could damage the company’s IT systems, or engage in illicit activities or disclose confidential information.

The Appeal

The employee's appeal to the Romanian Court of Appeal was not upheld so he appealed to the ECHR. Here he maintained his argument that his personal emails and other messages were protected by Article 8 of the Convention on Human Rights (ie right to a private and family life and correspondence). The employee argued that the Romanian courts had failed to protect this right. He argued that his employer should not have been allowed to use as evidence against him the personal messages that had been discovered.

The key question for the ECHR was whether the employee had a reasonable expectation of privacy when using his Yahoo account at work.

The ECHR concluded that the employer had acted within its disciplinary powers and that its reliance on the Yahoo account personal messages was justified because it was the only evidence that could be obtained to show that the employee had breached the clear rules prohibiting personal use of the Internet and computers during working hours.

The ECHR was also satisfied that as the employer had only looked at the Yahoo messages and not any other personal data or documents stored on the employee’s computer its monitoring was therefore limited in scope and was proportionate.

In conclusion the ECHR said that the Romanian courts had struck the right and fair balance between the employee’s right to a private and family life, under Article 8, and his employer’s interests. There was therefore no breach of this right as the employer had acted reasonably.

In Practice

If you want to monitor your employees’ personal emails and other messages the above case does not change the need for you to go about it in the right way and for the right reasons. Julie Temple or I would be pleased to help you make sure your approach to this issue is correct and does not end up as the next over hyped news story.

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