Two recent cases have focused specifically on the Human Rights Act and whether employees are able to have a reasonable expectation that their personal emails will remain private. In both situations, it was found that the employer was permitted to read the communication and use it as evidence against the employees in disciplinary proceedings.
The first case was heard in the European Court of Human Rights (ECHR) after being referred from a court in Romania. An employee set up a Yahoo Messenger account, upon his employer’s request, so that he could deal with client enquiries. The employer’s IT policy explained that communications undertaken with work IT equipment would be monitored, and it also prohibited employees using work equipment for personal purposes.
The employee was dismissed when the employer found that he had sent messages to his brother and fiancée via the account, which was in breach of the IT policy.
The ECHR said that an employer had the right and obligation to ensure the functioning of the company and to this end, the right to check the manner in which its employees complete their professional tasks. It also placed significance on the contents of the IT policy.
More recently, the Employment Appeal Tribunal decided that an employee in an NHS Trust did not have a reasonable expectation of privacy in relation to emails which impacted on work matters, and where the emails were sent to work email addresses of the recipients. In this particular case, an employee had been accused of harassing and stalking a colleague, including sending malicious emails from his personal mobile phone.
The right to privacy in the European Convention on Human Rights can be engaged to protect private correspondence, however, in this case, the right was not engaged because of the link to work.
Barbulescu v Romania
Garamukanwa v Solent NHS Trust
What does this mean for me?
- Employees’ personal emails will not always carry a reasonable expectation of privacy, especially where you have reserved the right to monitor communications.
- A robust IT policy is key to your flexibility;
- It will not be a breach of human rights to read the communications in circumstances similar to those above
- Keep to your policy: if you allow some private usage of email, then you should be cautious about reading the communication when it is obvious that it is not work related.