10 October 2017
Much has been made of a recent decision by the European Court of Human Rights (“ECHR”) that a Romanian employer’s decision to monitor an employee’s personal emails was an invasion of privacy. Some news headlines have suggested the decision means it is now unlawful to 'snoop' on employees whilst at work. Below we explain why a certain level of monitoring is acceptable if the correct steps and considerations are taken by employers beforehand.
In Barbulescu v Romania, Mr Barbulescu was dismissed by his employer for sending an unreasonable volume of personal emails from a Yahoo Messenger account whilst at work. His employer covertly monitored his emails which included reviewing the content of them. Mr Barbulescu had previously been warned about his excessive use of the personal email account and that he may be dismissed if it continued.
Mr Barbulescu challenged his dismissal in the Romanian courts but lost. He then brought a claim against the Romanian courts in the ECHR alleging it failed to protect his right to a private life and correspondence under the European Convention of Human Rights by upholding his employer’s dismissal.
What did the employer do wrong?
After an appeal, the ECHR agreed that Mr Barbulescu’s right to a private life had been infringed. Whilst Mr Barbulescu’s employer was entitled to run its business and investigate the alleged misuse of email, it had to balance those interests with Mr Barbulescu’s right to a private life and correspondence. When it covertly monitored his emails from a personal email account without warning, it got that balance wrong. If it had warned Mr Barbulescu that his personal emails may be monitored from time to time and had sufficient justification for the monitoring, it would have been entitled to interfere with Mr Barbulescu’s privacy rights.
In addition to not warning Mr Barbulescu of the email monitoring, the employer couldn’t justify its decision to review the contents of the emails with the aim of establishing the amount of personal emails Mr Barbulescu was sending. In the ECHR’s opinion, the employer could have reached the same conclusion by analysing the details of the recipients of the emails rather than the contents.
The Romanian courts should have taken this into consideration when considering Mr Barbulescu’s challenge to his dismissal.
How employers can avoid making a similar mistake
Whilst on the face of it the ECHR’s decision is unhelpful for employers, it should make little difference in the UK as the guidance provided in the decision is already enshrined in UK legislation and case law. However, it is an important reminder for employers that there are several factors that must be considered before monitoring an employee’s emails, including:
- ensuring the employee has been warned that emails sent from a work computer may be monitored. Ideally, this warning should be set out in an IT and Electronic Communications policy or the contract of employment; and
- establishing the aim of the monitoring and whether it can be achieved through any less intrusive means.
If you have any concerns regarding the monitoring of electronic communications or privacy at work, please contact Charlie Barnes.