Email monitoring: ECtHR confirms employer breached right to privacy
The European Court of Human Rights has confirmed an employer breached an employee’s right to privacy when accessing their workplace email account. This judgment provides guidance for UK employers on the extent to which workplace monitoring can take place without breaching privacy rights.
In Bărbulescu v Romania, the employer asked Bărbulescu to set up an email account for work purposes. There was a company rule in place which stated personal use of company IT systems was forbidden. His employer checked and read his messages. Bărbulescu was later dismissed after it was discovered he was sending personal messages to his brother and fiancée during working times.
In 2016, the European Court of Human Rights (ECtHR) judged that Bărbulescu’s right to respect for private and family life under article 8 of the European Convention on Human Rights had not been breached. The Court decided it was reasonable for employers to check whether employees were carrying out work during working hours and would not breach privacy by doing this.
The decision of the Grand Chamber of the ECtHR has now overturned this decision. The judges determined the employer failed to strike a fair balance between the employee’s right to privacy and the employer’s right to ensure their business is running effectively in this case.
This decision does not create a total prohibition against employers monitoring employee communications, especially when there is a suspicion or allegation that the employee is sending personal communication during working hours. Instead, this judgment confirms that employers must take into account the employee’s right to privacy and must act in a way which does not breach this right.
To carry out monitoring lawfully, employers must:
- Ensure they have a fair, proportionate and legitimate reason to monitor employee communications
- Inform employees, in advance, that monitoring takes place. It is best practice to advise them how, when and what communications will be monitored, for example, whether this covers emails; telephone calls, mobile phones etc. Setting out the action that can be taken as a result of monitoring will also ensure this is transparent
- Consider implementing a policy regarding monitoring or including a specific monitoring clause in relevant policies, for example, an email and internet policy. All policies should be communicated to staff and receiving signed confirmation the employee has read and understood this will be important evidence when looking to rely on this in the future
- Carry out an assessment to ensure the extent of monitoring is proportionate and is not breaching employees’ right to privacy. For example, looking at a list of emails addresses is likely to be proportionate, however, accessing and reading every personal message may not be
- Assess whether a less intrusive method can be used to achieve the same result. For example, if an employee is suspected of sending personal emails through a workplace account can the employee be invited to a meeting to discuss this
UK judges are required to take ECtHR judgments into account when deciding cases and domestic case law already states secret monitoring of employee calls, emails and internet use is a breach of the right to privacy. This latest case confirms the importance of informing the employee in advance and monitoring in a fair and proportionate manner to ensure privacy rights are not breached.