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Monitoring personal messages in the work place

2nd February 2016

In the recent case of Barbulescu v Romania, the European Court of Human Rights (“ECtHR”) handed down its decision on the right to privacy under Article 8 of the European Convention on Human Rights.

It was held that the right to respect for private life is not breached if an employer monitors an employee’s personal communications at work, subject to reasonableness and proportionality.

In this case, the employer had a rule in which all personal use of the employer’s IT systems was ‘forbidden’. The employee had used his business Yahoo email account to communicate on a personal level with his girlfriend and brother during work time and via the employer’s systems. This was in breach of his employment contract and the employer invited the employee to a disciplinary meeting.

The employee claimed that his use had been professional only, however the employer had printed copies of the personal messages which included messages about the employee’s health and sex life. The employer dismissed the employee and the employee brought a claim stating that his dismissal was unfair.

The Romanian courts upheld the employee's dismissal. The employee argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.

The ECtHR held that the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. It seems the ECtHR were swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages. Additionally the ECtHR held that the monitoring and use of the personal messages was a proportionate interference of an employees Article 8 rights as there is a need for employers to be able to verify that employees are completing professional tasks during working hours.

It is important to note that this case does not now give employers the right to search through employees' personal emails and does not overrule previous ECtHR case law on the reasonable expectation of privacy. Nor does it override existing UK legislation, including the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, which place important limitations on employers' power to monitor their employees' private communications.

It is important for all employers to ensure that their rules in relation to employees using IT systems at work are clear and that their internal policies allow them to monitor an employee’s use of the systems. It is important for an employer to take advice before monitoring an employee’s private emails as overstepping the mark could lead to the employee bringing a claim against the employer. 

Please do not hesitate to contact me, or a member of my team, if you would like some advice regarding the monitoring of employees or the effect of this recent case on your business.

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