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Monitoring an employee’s personal emails may be a breach of human rights

The recent decision in the Grand Chamber of the European Court of Human Rights (ECHR) highlights the risk to employers who choose to monitor employee’s emails.

In the case of Barbulescu v Romania an employee was dismissed for sending personal emails at work in breach of his employer’s IT policy.

 At the request of the employer, the employee had set up an instant messaging account using Yahoo Messenger to communicate with clients. The employee subsequently sent personal messages on his company computer using both his work Yahoo Messenger account and his personal Yahoo Messenger account. Although the employee had been notified that personal internet use was prohibited, there was no express statement that the company would monitor the content of any communications. Without notifying the employee, the employer ordered the monitoring of the employee’s computer which revealed the personal emails. Disciplinary proceedings were commenced and a transcript of the email conversations was produced to the employee and he was consequently dismissed.  

The employee brought a claim against the employer challenging his dismissal. The national courts decided that the dismissal was lawful on the basis that as the employee had denied using the computer for personal use, the employer had no other means of proving the allegation. They found that the monitoring was legitimate and proportionate.

The Grand Chamber of the ECHR considered that the employee’s right to a private life (Article 8) had not been properly respected. It held that the national courts had failed to strike a fair balance between the relevant competing interests. However, the employee was not awarded damages as the Grand Chamber considered that the finding of a violation was a sufficient remedy for any non-financial damage the employee might have sustained.

The findings of the Grand Chamber should act as a warning to employers wishing to monitor its employee’s communications.

If an employer decides it is necessary to monitor an employee’s correspondence it should:

  • Consider whether it has a legitimate aim for the monitoring, and that is proportionate to the proposed level of monitoring.
  • Consider whether the level of monitoring could be reduced to a less intrusive method, for example, only monitoring the flow of communications, not their content.
  • Provide the employees with clear notification about the monitoring in advance.
  • Ensure that any internal policies and procedures indicate clearly the nature and extent of any monitoring to be carried out.
  • Ensure that employees are aware of the implications if the monitoring reveals they have breached restrictions that are in place.

Employers should also be aware that rules around monitoring will be more stringent when the General Data Protection Regulation (GDPR) comes into force in 25 May 2018.

Added: 08 Mar 2018 12:43

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