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Revisiting That ‘Old Gem’ of Employers Spying on Employee Emails?

CASE OF BĂRBULESCU v. ROMANIA

The European Court of Human Rights has concluded that employers are allowed ‘full access to personal messages sent from company computers’.

Firstly, let’s be clear: the European Court of Human Rights does not make actually make any law, change laws or interpret law. It considers whether laws that already exist, are compliant with the European Convention on Human Rights. In this instance, the Court found that data protection laws in Romania are not in breach of that Convention; confirming the existing law is fine and nothing is to change.

If you were thinking this is a landmark ruling – you’d be wrong. Nothing has changed; the Court did not say that employers are free to spy on employees emails. So what’s happened? Here are the facts: On the instructions of the employer, the employee created a Yahoo Messenger account to respond to client enquiries, as the employer requested. The company had a written policy stating employees are prevented from using company equipment for personal use.

The employee was monitored by the employer and was found to have used the email account for personal messages, and the company produced a printout as evidence, and he was eventually sacked. The employee then claimed unfair dismissal as his right to privacy had been breached, but the Romanian court found that the employer was entitled to do this, to ensure work computers were being used solely for professional reasons.

His appeal was unsuccessful, so he brought his claim to the European Court of Human Rights and argued a breach of Article 8 of the European Convention on Human Rights, which states ‘everyone has the right to respect for his private and family life, his home and correspondence’.

The Court concluded there had been no breach; that Romanian employment law struck a fair balance between the employee’s right to privacy and the interests of the company and the Court stated: ‘it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.’

This is certainly no landmark ruling so; are employers free to spy on an employee’s emails?

The UK, the Data Protection Act covers the employer’s right to monitor employee’s emails and the Information Commissioner has produced a detailed code of practice to help, or you can find straightforward guidance here.

In summary, if as an employer wishes to monitor employees’ communications, you need to consider three main things:

  1. Can you establish a clear business reason for the monitoring?
  2. Is the extent of the monitoring reasonable? For example, you could look at the email address rather than reading whole emails;
  3. Do you have a written policy which tells employees monitoring could take place?

The right to an employer being able to monitor has its limits, along with the right to privacy for the employee; the main issue is, is the employer being reasonable?

Want to know more? Contact Phillipa at phillipa@loftusstowe.com

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Femi Ogunshakin Managing Director
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