Employment law: Monitoring personal emails

A RECENT legal case in Romania – Barbulescu v Romania – has caused a bit of a stir, with headlines in the press declaring that employers can now snoop on employees’ personal communications sent from company computers or smartphones. Is this really the case?

In a nutshell, no. This ruling does not allow employers to read all employee emails, although the Barbulescu case led to much debate on the subject and this article attempts to highlight some of the key issues. The decision was made at the European Court of Human Rights, who are not in a position to tell other countries what their laws should be, but it does consider whether there has been a breach of the European Convention on Human Rights

In this case, the employee was asked by his employer to set up a Yahoo Messenger account for business purposes and client communication only. The company had a clear policy stating that their computers and telephones could not be used for personal purposes. It was brought to their attention that the employee was in fact using the app to communicate with friends and family, and after monitoring his account, the employee was found in breach of this policy. It is interesting to note that Mr Barbulescu was made aware that communications could be under surveillance.

The employee denied this, stating he had only used the email account for business purposes, but the company presented a 45- page transcript showing the usage, including messages to his fiancée and brother. He was then invited to a disciplinary hearing where he flatly denied any personal use of the account which the employer knew to be false. The outcome of the disciplinary hearing was that he was dismissed from his employment as a result of using the messenger service for personal use.

This prompted the employee to complain that his right to privacy had been violated and he attempted to claim unfair dismissal. However, his claim was dismissed with the court stating that the employer was entitled to monitor the use of work computers to ensure the account was being utilised solely for business purposes. The only way to do this was to check the employee’s messages.

The employee took his claim to the European Court of Human Rights, contending his Article 8 right – that “everyone has the right to respect for his private and family life, his home and his correspondence” – had been violated. It was also noted by the courts that the emails had sensitive information contained within them relating to his health and sex life.

Despite finding the claim fell within the scope of Article 8, the court judged that the employer had acted reasonably and only relied on the 45-page transcript after the employee denied using the account for personal purposes. In this case, the employer’s monitoring was not about the actual contents of the messages, but the fact that they existed and to such an extent.

The appeal failed and the court held that “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”.

To conclude, this case does not give employers the right to be able to read all private messages, and practices need to ensure they are still acting reasonably and fairly to employees. We would recommend that you ensure you have a clear policy that covers the practice’s equipment (in terms of both computers and any work phones) and what staff are able to use and when. In any dispute regarding an employee dismissal a tribunal will want you to show evidence of the breach, but more importantly what rule they are alleged to have breached. If there is no evidence of a breach of a policy or contractual requirement then this will make the disciplinary decision more vulnerable to be challenged.

Nevertheless, this decision does illustrate that employees would be wise not to use work email accounts or equipment supplied by employers such as PCs, tablets, mobiles or laptops for personal purposes. Ultimately any equipment belongs to the employer.

Employers should take care when deciding if it is appropriate to monitor personal communications and aspects to consider are:

• Is there a clear business need for the monitoring?
• Is the level and intrusiveness of the monitoring proportionate to that business need?
• Have you made it clear to employees how and why monitoring might take place?

An employer does have significant obligations under data protection regulations to ensure that there is a clear requirement for the monitoring of personal data. This is a tricky area of the law and our employment law advisers can guide you through the process if you have any issues.

Janice Sibbald is an employment law adviser at MDDUS