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Does the employer have the right to monitor an employee's private e-mails at work

31st January 2016

In the case of Barbulescu v Romania the European Court of Human Rights has concluded that there was no breach of an employee's rights under Article 8 of the European Convention on Human Rights (which is the right to respect for private and family life, the home and correspondence) when the employee had been dismissed for using the company's internet facilities for personal purposes during working hours.

The claimant was employed by a private company. An e-mail account that the employee had been asked to create for work to respond to customer enquiries was subsequently monitored, and the employer had records which showed that the employee had used that account for personal reasons, contrary to the company's rules. The employee denied the allegation, but was subsequently presented with transcripts of messages he had created on the account which included messages to his girlfriend and his brother (some of which referred to very personal matters). The Romanian courts had rejected his claims of breach of Article 8 rights, noting that the employer had followed its disciplinary proceedings properly, and had already informed the employee of the policy forbidding personal use of the company's resources. It noted that the Romanian court was required to strike a balance between the employee's personal and private life, and the employer's interests in considering the Article 8 rights. It noted that it was not unreasonable of the employer to take steps to ascertain that the employee was carrying out his professional tasks during his working hours. The European Court of Human Rights concluded that the Romanian courts had only examined the content of the messages that the individual sent on the company e-mail account to the degree required to establish that he had been in breach of the employer's policies.

The court case has prompted a number of responses and articles. The Institute of Directors is reported as saying that "Employees should not be subject to Stasi-style surveillance at work,....." and that "We strongly urge businesses not to read an employee's personal messages, apart from in the most exceptional circumstances."(1) Perhaps more helpfully the General Secretary of the TUC, Frances O'Grady, is reported as saying "Staff who are being snooped on are less productive and less healthy"(2). There have also been concerns raised in an article that referred to  a city worker that had their work e-mails investigated to the extent that  "It was getting ridiculous.HR were totally desperate to pin something on me, so they could justify the size of their investigations into my activities."(3). These articles illustrate the strength of feelings that arise on this topic, and the difficulty that employers (and employees) have in knowing where to draw the line between legitimate personal use and unlawful intrusion.

Clearly there are a number of lessons to be learned from the case:-

a) Employers need to introduce clear policies on the use of internet and e-mail facilities for staff while at work (and make sure that all staff are aware of the terms of such policies),

b) That in some exceptional cases it is reasonable and fair for employees to able to use the internet or e-mail facilities for personal use,

c) That the extent and purpose of personal use of internet and e-mail facilities should be clearly defined. 

At Hallett Employment Law Services Ltd we can help you write, and implement appropriate policies fairly, or give advice to any employee that feels that they have been unfairly treated in respect of e-mail or internet use at work.

References:-

(1) and (2) see www.bbc.co.uk/news/technology-35314038  (accessed 14 January 2016.

(3) see www.bbc.co.uk/news/magazine- 35311890- (accessed 14 January 2016)                         

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