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18 April 2016

Email monitoring ‘did not violate’ employee’s privacy rights

In a case concerning an employer's right to examine an employee's use of office computers for sending personal communications during working hours, in breach of the employer's internal regulations, the European Court of Human Rights has ruled that reasonable monitoring of emails is an acceptable means of ensuring that such strictures are complied with (Barbulescu v Romania).

The case concerned a Romanian man living in Bucharest. He was employed by a private company as an engineer in charge of sales and, at his employer's request, had created a Yahoo! Messenger account for the sole purpose of responding to clients' enquiries. He was aware of his employer's policy forbidding the use of any office equipment for personal communications and employees had been warned that their email activity was under surveillance following the dismissal of a colleague for breaching the rule.

On 13 July 2007, the engineer was informed that his Yahoo! Messenger account had been monitored and the discovery made that it had been used for private correspondence. He replied in writing that he had only used the account for professional purposes.

His employer then presented him with a 45-page transcript of messages he had sent and received between 5 and 13 July, including all those he had exchanged with his fiancée and brother. The engineer was subsequently dismissed.

He argued without success before the courts in Romania that the monitoring of the account breached domestic law and amounted to a breach of his right to respect for privacy, enshrined in Article 8 of the European Convention on Human Rights.

In rejecting his arguments on appeal, the European Court found that it is not unreasonable for an employer to verify that workers are devoting themselves to their professional tasks during working hours. Monitoring the account was, in practice, the only means of ensuring the engineer's compliance with the employer's explicit policy. No mention had been made during the proceedings of any of the contents of the personal emails, nor was the identity of the recipients made known.

In the Court's view, the level of monitoring was limited in scope and proportionate, and there was nothing to indicate that the Romanian courts had failed to strike a fair balance between the man's right to respect for his private life and his employer's interests.

Says associate Paul Lawton, "Some news outlets reported the decision of the European Court of Human Rights in this case as giving employers carte blanche to snoop on employees' private communications. That is not the case. Where there is a ban on personal emails etc., employers should have a written policy making this clear and stating that monitoring may take place. Checks should be carried out in a proportionate manner, and only when there is a clear business reason for doing so. We can assist you in drawing up a policy tailored to the needs of your business."

Contact Paul for advice by calling 01753 279029 or emailing your enquiry to employmentlaw@bpcollins.co.uk.

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