Can employers now read employees' private messages if sent from work?
The European Court of Human Rights (ECHR) decision in the case Barbulescu v Romania on monitoring employees' personal emails has caused quite a stir among employers and appears to have sent shockwaves through some groups of employees. However, has it really told us anything we don’t already know?
Barbulescu, a Romanian national, lodged his case with the ECHR after being dismissed by his employer for sending personal messages to his fiancée and brother during working hours using a Yahoo Messenger account set up for work use. This was a contravention of an internal policy but Barbulescu claimed his employer had infringed Article 8 of the European Convention on Human Rights by snooping on his personal emails and messages and using these as a reason to dismiss him.
Article 8 provides for a right to respect for private and family life, the home and correspondence, but it is a ‘qualified’ right which means that restrictions on it can be justified where necessary to protect the rights and freedom of others.
The ECHR ruled in favour of the employer stating that on balance Article 8 had not been infringed. The court believed it was reasonable for the company to check whether its employees were completing their professional tasks during working hours and also considered it significant that the employer initially viewed the employee's account to search for client-related communications.
The decision will be welcomed by employers, but it does not give organisations blanket permission to 'snoop' on employees' personal accounts and messages. They have to be able to justify any intrusion into an employee's personal life. There are some important points to note:
- although this was a Yahoo account, it was set up at the employer's request for work purposes; it was not Barbulescu’s personal email account
- the employer only used transcripts of Barbulescu's communications where it was necessary to prove his breach of company policy.
In the UK the law does allow employees' communications via company systems to be monitored or intercepted in certain circumstances, including for the purpose of checking employees are not breaching company policies on the use of email in the workplace. However, employers should remember that if they do undertake monitoring, they are likely to be processing personal data which will trigger obligations under the Data Protection Act 1998.
The ‘Employment practices code’ produced by the Information Commissioner’s Office states that workers have a legitimate expectation of keeping their personal lives private at work, and are entitled to a degree of privacy in the workplace. Any monitoring should, therefore, be justified by the benefits it delivers and the code recommends employers undertaking impact assessments beforehand. These should:
- identify clear purposes for the monitoring
- point out any benefits the monitoring delivers, taking into account the obligations that arise from it
- judge whether monitoring is justified.
Employers should also consider whether there are less intrusive ways of monitoring correspondence on its systems; for example, using automated monitoring that blocks emails containing obscene language, but does not forward those emails to a human, rather than monitoring by a line manager who can see every email sent by their employees.
If monitoring employees' personal communications on business accounts is the only option available to an employer, the company should take steps to remove employees' expectation of privacy. This includes having robust policies regarding computer use and social media informing employees of the extent to which they are allowed to send personal communications on company systems, whether outside or during work time, and notifying employees when their communications will be monitored, how often, and why this is necessary.
The policies should make it clear that failing to comply could result in disciplinary proceedings, up to and including dismissal. They should be clearly communicated to employees, for example, on the company intranet, in employee handbooks and during staff inductions so there can be no doubt as to either parties' expectations.
Natalie Painter is a solicitor in the employment law team at Blake Morgan LLP
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