15 January 2016 #Employment
The European Court of Human Rights’ Judgment in a Romanian employment dispute has been widely reported in the national press as giving the green light to employers to monitor employees’ personal emails and electronic messages on work systems.
Not surprisingly, the press coverage over-simplifies the effect of this particular ruling and employers need to continue to tread very carefully when monitoring personal emails and other electronic communications.
In the relevant European case (Barbulescu v Romania), the employee challenged the lawfulness under Romanian law of his dismissal for using his work IT system to send personal emails and Yahoo messages during working time. His main argument was that his right to private life (under the Human Rights Convention) had been breached.
Such arguments are not unusual and there are several UK cases where Claimants have sought to rely on their right to private life to argue that their dismissal was unfair.
The right to private life is a very broad right and can attach to personal correspondence using work systems and in work time. This most recent judgment does not change this legal principle; indeed, the Court found that Mr Barbulescu’s right to private life had been triggered in respect of his emails and Yahoo messages.
The key point though is that the right to private life is not breached where an employer monitors personal emails and messages provided such monitoring is reasonable and proportionate in the particular circumstances of the case.
So, in Mr Barbulesca’s case, because the employer had a strict no personal use policy which had been clearly communicated to all employees and because Mr Barbulescu had initially denied to his employer that he had in fact send personal emails and messages, it was reasonable and proportionate for the employer to monitor his personal correspondence and rely on this to dismiss him.
The ruling in Barbulescu does not pave the way for employers to review employee’s personal emails and messages without cause. Employers must have clear policies on personal use and monitoring in place which are regularly communicated to employees and enforced consistently. Moreover, on each occasion an employer wishes to monitor an employee’s personal communications, an assessment needs to be made to ensure that the employer has a legitimate reason to review the relevant material and that the manner in which the review is undertaken is reasonable and proportionate.