22 September 2017 by

Reading Employees’ emails is a breach of their human rights! Unless you warn them first…

Social Media and instant messaging is blurring the boundary between work and home.

With communication just a click away, it is becoming the norm for us to send work related emails from home and increasingly tempting to send a personal message or two, or flick through Facebook for a quick distraction at the office.

But what happens when we lose the balance, and personal usage reaches a level where an employer suspects it is interfering with work – can they monitor messages to see if such suspicions are warranted?

No, said the Grand Chamber of the European Court of Human Rights.

The Case

Romanian engineer Bogdan Barbulescu was dismissed by his employer for unauthorised personal use of the internet. In order to gather evidence of that usage, his employer monitored and read personal instant messages that he had sent to his brother and fiancée whilst at work.

Initially the courts agreed with the employer. Taking the view that monitoring of work communications in disciplinary proceedings was a proportionate interference with the Article 8 Human Right to a private life.

Dissatisfied with the courts’ decisions, Barbulescu took his case all the way to the European Court of Human Rights – and it’s a good job he did. They agreed with him that there had indeed been an intolerable breach of his right to private life.

The Court found that it made no difference that Barbulescu had been asked to set up the account specifically for work purposes or that the employer had a strict and visible policy stating that only work communications could be sent. The relevant factor was that Barbulescu had not been informed in advance that communications would be monitored, effectively “reducing private life in the workplace to zero”.

What next for employers?

This latest judgment has bolstered the rights of employees to have a degree of privacy when sending and receiving communications at work. What is clear is that a balance needs to be struck between the right to private life and an employer’s need to uphold internal disciplinary standards.

The key take-away seems to be that if an employer is to monitor employee communications it needs to make employees explicitly and expressly aware of this in advance. Some top tips to consider in light of this:-

  • Make sure that the company has a clear and up to date policy on online communications at work, ideally as part of the Employee Handbook.
  • Expressly set out whether monitoring will take place and if so, how and to what extent. It is advisable to take legal advice to ensure that the extent of monitoring is reasonable and proportionate. Particularly in light of the General Data Protection Regulations, which become effective in May 2018. https://www.boltburdon.co.uk/blogs/general-data-protection-regulations-gdpr-business-prepared/
  • Give employees a copy of the policy when they join the business or for those already working ensure that this is circulated.
  • Employees need to understand the terms and be able to access them – do not hide the policy away in the middle of a 40 page document that will never be read.

For advice on any of the above, including drafting employment policies or Employee Handbooks please contact one of our solicitors in the Employment team here.

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