Private emails and the right to privacy at work

11 Sep 2017 By Beverley Sunderland

Are employers permitted to view workers’ private emails? Beverley Sunderland reports on the latest European Court of Human Rights ruling

Mr Barbulescu’s employers had a policy stating that work equipment could not be used for anything personal. His employer believed he had been sending personal emails and when he denied it, they looked at his Yahoo Messenger account and discovered he had. They dismissed him.

The employer said it had warned Mr Barbulescu in advance that his emails would be monitored. He denied this. Despite this, the European Court of Human Rights (ECHR) concluded that his privacy rights under Article 8 had not been infringed. The judges said that as there were internal rules forbidding the use of work equipment, he could not have a reasonable expectation of privacy, and “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”. Monitoring was found to be limited and proportionate as they only looked at the emails and not anything else.

Grand Chamber ruling

Mr Barbulescu appealed to the Grand Chamber, which eventually issued an 11 to 6 majority decision overturning the ECHR’s decision. It said that while privacy rights could be reduced by employers, they could not be reduced to zero and a balancing act had to be performed between a company wanting to ensure smooth running and the rights of the employee to a private life and correspondence.

The Grand Chamber criticised the national courts for not having determined if Mr Barbulescu had received prior notice from his employer that it might monitor his communications. Based on the evidence available, the Grand Chamber concluded that Mr Barbulescu had not been warned before the monitoring taking place or that the content of emails would be looked at.

The national courts did not take into consideration the nature or the extent of the monitoring or the degree of intrusion into his private life and correspondence, and had failed to examine the specific reasons justifying the introduction of these monitoring measures and whether measures could have been introduced that would have been less intrusive into Mr Barbulescu’s private life and correspondence. The national courts, the Grand Chamber said, had failed to consider the seriousness of the consequences of the monitoring, namely his immediate dismissal, and had failed to come to a decision as to when the emails had been accessed – was this before or after they had called him to a meeting to ask him if he had used company resources? 

What this means for employer

The first question is: why do they want to monitor? Most employers would say they want to make sure their employees are working when at their desks, but is reserving the right generally to look at private emails a proportionate way to do it? Perhaps monitoring the amount of time spent on the internet generally would be a good way of judging whether people are working or not, although many jobs might require internet access.

Some companies block access to certain website and messaging services, and most employees have smartphones and so can look at their emails in their own time. An employer should have a clear policy that sets out the very limited circumstances in which they reserve the right to look at private emails; these could include if they suspect crime or employees trying to take their confidential information or breach their restrictive covenants. Such powers should be used sparingly and only with the permission of a very senior manager.

Beverley Sunderland is managing director of Crossland Employment Solicitors

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