Hi, this is your employer. Can I look at your personal emails please?

One of the first things an employee receives on starting a new job is a personal work email account. Some companies have gone one step further and implemented an internal instant messaging system so that colleagues can communicate with each other without the formalities of an email. The question of whether their employer can monitor and examine their emails and instant messages is not always at the forefront of the employee’s mind as they hit the send button. But it should be.

This issue was considered in the recent European Court of Human Rights case of Barbulescu v Romania 61496/08.

The Applicant was a Romanian national who worked for a private company as an engineer in charge of sales between 2004 and 2007. At his Employer’s request, the Applicant created a Yahoo Messenger account for the purpose of responding to clients’ enquiries.

On 13 July 2007 the Employer advised the Applicant that his Yahoo Messenger communications had been monitored for the preceding eight days to ensure that he was fulfilling his work obligations and not using the messenger system for personal purposes, which would be contrary to the Employer’s policy. The Employer informed the Applicant that the records showed he had been using the messenger system for personal purposes, something the Applicant denied. The Employer then presented the Applicant with a 45 page transcript of the communications (some of which were highly personal messages to his brother and fiancée). The Applicant’s employment was terminated.

The Applicant argued in the Romanian Court of Appeal that the Employer, by monitoring and reading his communications, had breached his Article 8 Convention right relating to respecting his private life.

The Court of Appeal dismissed the appeal, reasserting the point that the monitoring of the Applicant’s communications was the only method of establishing if there had been a disciplinary breach.

The Applicant took his case to the European Court of Human Rights (ECHR) alleging that a member state (Romania) had failed to protect his Article 8 right of respect for his private life by upholding the validity of his Employer’s decision to terminate his contract.

The ECHR agreed with the Applicant that Article 8 was engaged.

However, the ECHR, by majority, went on to determine that the Applicant’s Article 8 rights had not been breached. They held that the member state needed to strike a fair balance between the Applicant’s right to respect for his private life and correspondence and his Employer’s interests in ensuring that the Employee is not wasting time. The ECHR noted that the Court of Appeal in particular attached importance to the fact that the Employer had accessed the Applicant’s Yahoo Messenger account in the belief that it only contained professional messages seeing as though the Applicant had asserted as such.

It followed that the domestic courts were correct in deciding that the Employer had acted legitimately by accessing the account as part of the Company disciplinary procedure. With regard to the private nature of some of the messages that were put before the domestic courts, the ECHR held that the domestic courts only relied on them to prove the Applicant’s blatant disciplinary breach of using the Company computer for personal use and were not concerned with the actual content of the communications. They stated further that the Employer had acted with proportionality by only monitoring the Applicant’s communications for a short period (eight days) and by not examining other documents on his computer. The Applicant’s case was dismissed.

What is clear from this decision is that employers should implement a comprehensive Internet usage policy that has specific rules on electronic communication. The policy should be based on proportionality and necessity with the employer employing the least intrusive monitoring method when required.

Coincidentally, The Guardian reported on Monday (11 January 2016) that following strong criticism concerning “surveillance” on staff, The Daily Telegraph will be removing monitoring devices which track when somebody is away from their desk.

If you have any questions in relation to this article or would like any assistance in drafting an appropriate policy please don’t hesitate to contact Sejal Raja at sejal.raja@rlb-law.com.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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