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When does Monitoring Emails Breach Privacy?

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This article has been submitted by Greenaway Scott

The ability for an employer to monitor an employee at work can be found in various policies or outlined in their contract.

The extent to which an employer can monitor their email accounts, and the point at which it becomes a breach of privacy, is a controversial area.

The recent ruling in the decade-long appeal of the case of Bărbulescu v Romania addressed just this.  This case involved the dismissal of an employee and the reasonableness for an employer to monitor their emails.

The European Court of Human Rights (ECHR) ruled against the decision made in the Romanian courts in 2007, which was that a Romanian employer acted lawfully when it monitored an employee’s email account.

Although the employer had a strict rule in place against the use of computers for personal purposes, there was no reference to monitoring emails or computer use. The employee was asked to set up an email account to answer clients’ enquiries, but used it to exchange private messages with his brother and fiancée.

The ECHR’S initial ruling was misreported as an employer-friendly decision creating a right for employers to spy on their staff’s activities at work and allowing a degree of snooping on employees’ personal emails. The employee claimed that the privacy of his emails should have been protected by Article 8 of the European Convention on Human Rights, which guarantees respect for private and family life and correspondence.

The ECHR initially decided that the firm had acted reasonably in monitoring his emails in the context of disciplinary proceedings and found there had been no violation of his rights. In reversing the decision, the ECHR restored a degree of convention, but this decision by no means champions employee privacy in the workplace at all costs.

The employee’s reasonable expectation of privacy was not clear cut, because he had been informed of the employer’s strict internet usage policy, and had even signed a copy of the company notice reiterating the policy, shortly before the disciplinary proceedings.

Crucially, however, the employee had not been told expressly that the content of his personal communications on work IT equipment could be monitored at any time. It was this failure to notify the employee which was one of the key factors influencing the Grand Chamber’s decision. Although the ECHR cannot establish new laws, its decision could form significant guidance and legal precedent about when and how far monitoring is permissible by an employer.

The information contained in this article is for information purposes only and is not intended to constitute legal advice. If you require further information our employment team at Greenaway Scott would be more than happy to assist you. Please contact us at [email protected] or call us on 029 2009 5500 to speak to one of our team.