Ask the expert: Can I monitor personal emails?

Q. THE recent Romanian case of Barbulescu v Romania has been causing a bit of a stir, with headlines in the press declaring that employers can now snoop on employee’s personal communications sent from company computers or smartphones. Is this the case?

A. This ruling does not allow employers to read all employee emails although the Barbulescu case led to much debate on the subject.

In this case, the employee was asked by his employer to set up a Yahoo Messenger account for business purposes and client communication. The company had a policy stating their computers and telephones could not be used for personal purposes and, after monitoring his account, found the employee was in breach of this policy.

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.

This prompted the employee to complain that his right to privacy had been violated. However, his claim was dismissed by the court which ruled that the employer was entitled to monitor the use of work computers to ensure the account was being used 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.”

Despite finding the claim falling within the scope of Article 8, the court found 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 contents of the messages, but the fact that they existed.

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.”

This case does not give employers the right to read all private messages and practices need to ensure they are still acting reasonably and fairly towards 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.

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

  • 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?

This is a tricky area and our employment law advisers can guide you through the process if you have any issues.