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European Human Rights Court limits employers’ right to monitor employee emails

Oct 06, 2017

Last month, Europe’s Human Rights Court established that employers can monitor employees’ emails but only if they notify the employee in advance. This represents the rapid evolving area of legislation at the crossing of technology, privacy and workers’ rights.

The judgement in the case of Barbulescu’s v Romania concluded that the authorities had not sufficiently protected Barbulescu’s right to a private life and correspondence. It was further established that the national courts had failed to identify whether the employee had been given prior notice from his employer that his workplace communications were being observed.

In this case, the employees’ communications involved messages he had sent to his brother and fiancé disclosing private matters, some of which were of an intimate nature.

Following this, the employee had his employment terminated on the grounds that he had breached the company’s internal regulations that prohibited the use of company equipment for personal purposes.

The courts in this case submitted, although it was debatable whether the employee could have had a reasonable expectation of privacy in view of his employer’s restrictive regulations on internet use, and although he had been informed, the employers instruction could not reduce private social life in the workplace to zero.

The decision made in this case does not mean that employers are prevented or restricted when it comes to monitoring emails, but they should be taking into consideration some other important aspects before doing so.

(1)   Have a legitimate reason to monitor employees’ emails in the first instance

Legitimate reasons include; The need to detect any criminal activity, to identify if an employee is using workplace systems for the wrong reason, making sure that employees are working to the expected standards and following company procedures, investigating claims of misconduct and finally, if there is a need to identify misuse of confidential information.

Employers must have a fair, proportionate and legitimate reason to investigate employee communications. It is crucial that employers find the correct balance between their needs and their employees right to a private life.

(2)   Ensure that there are clear workplace policies in place

In the event that you decide to monitor the use of electronic platforms in the workplace, it is important that all employees are made aware of the nature and the context of the monitoring. Further, it is recommended that employers insert such provisions into the employees’ contract of employment or employee handbooks. Within these the instructions, it should be made clear what the employee can and cannot do and the consequences of any violation within these policies.

(3)   Ensure your employees are well informed in advance

Should an employer find that an employee’s communication use needs to be monitored, it is crucial that they employee is made aware that this is going to occur. As well as this, the employee should be notified of how this will be conducted and what aspects of communication are under investigation.

(4)   If you do not already, have a monitoring policy in place

If an employer does not already have these in place, or it is not detailed in employee’s phones, emails and internet use, then these should be incorporated and communicated to all employees. Having these signed documents is crucial in the event that an employer should wish to enforce a monitoring policy.

(5)   Is there a less intrusive method available?

In the first instance, it may be more productive to ask the employee first if they are using workplace emails for private use, instead of assuming and accessing their email immediately. If the employee owns up and admits they have been using emails for personal use there will be no need to monitor further. Monitoring should only be carried out if the employee denies such a claim.

Employers should note that UK case law states that the monitoring of employee calls, emails and internet use is a breach of privacy. This latest judgement by the European Human Rights Court reiterates the seriousness for UK employers to find the correct balance prior to carrying out any investigations of employees.

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