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Monitoring workers'e-mails

5th October 2017

In an unusual step, the Grand Chamber of the European Court of Human Rights has overturned a decision of its own judicial Chamber in a case concerning the monitoring of workers e-mails.

Back in January 2016 we wrote about the case of Barbulescu v Romania. At that point the Chamber of the European Court of Human Rights ruled that there had been no breach of the Article 8 right to private and family life when the employee had been dismissed for using the employer’s internet facilities for personal use during working hours.

The case concerned a person that worked in a private company. An e-mail account had been set up to use to respond to enquiries from customers. The account was monitored. The monitoring brought to attention the fact that the individual had used the account for personal reasons, contrary to the company’s rules. The Romanian courts rejected a subsequent claim by the individual that his Article 8 rights had been breached. The court noted that the company had followed its own disciplinary procedures correctly, and noted that it was not unreasonable of the employer to take steps to ascertain that the employee was carrying out his professional duties. The Chamber noted that the court was right to strike a fair balance between the respective rights of the individual and those of the employer in considering if there had been a breach of the Article 8 rights.

At the time that the case was reported, there were widespread comments made on the outcome-  generally pointing to the need for employers to introduce staff policies regarding the use of the internet and e-mail facilities in working hours.

In an unusual development, the Grand Chamber of the European Court of Human Rights has reversed the decision of the Chamber, that we reported in January 2016.

The principal point that the Grand Chamber has made is that workers do have a right to some privacy at work. They concluded that if an employer is going to monitor the e-mails of their workers, then the employer should (in all but exceptional circumstances) tell the workers that their communications may be monitored.

In this case although the worker knew that it was forbidden to use work e-mails for personal purposes, he had not actually been told that the employer was monitoring the communications. Consequently, the Grand Chamber ruled that Romania had failed to strike a fair balance between the employer’s and the individual’s rights, and so the individual was entitled to compensation.

The Grand Chamber found that while a person could have their rights restricted by their employer, those rights should not be reduced to zero. The court ruled that the employer had failed to give adequate notice of the monitoring, and had failed to demonstrate sufficient justification or that there were not less intrusive means of achieving their aims.

This decision does make it harder for employers to determine at what point any monitoring has become excessive or too intrusive. The case does also demonstrate that employers should not be too blunt in implementing any policy over the use of internet and e-mail facilities by their workers. Careful consideration should be given to the frequency and mode of monitoring e-mail and internet use, and we also take the view that a total ban on personal use will be difficult to justify in light of this case.

In any event, this case clearly highlights the need for employers to have written procedures on this issue, and to exercise them in a proportionate, even-handed, and fair manner.  

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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