21st September 2017

Monitoring Employee’s Emails

Following the recent case of Bărbulescu v Romania, the Grand Chamber of the ECHR held that an Employer was infringing upon their employee’s Article 8 right to privacy by monitoring the employee’s work emails on their Yahoo Messenger account.

Background

In 2007 Mr Bărbulescu was dismissed by his Romanian employer on the grounds that he had breached his company’s email and computer usage policy, by sending personal emails from his Yahoo Messenger account. Mr Bărbulescu maintained that he had only used this email account for work-related purposes and not for personal use as alleged by his employer.

During the disciplinary proceedings, the employer accessed and printed off copies of multiple emails sent to Mr Bărbulescu’s fiancée and brother from the email account. Mr Bărbulescu argued that this amounted to a breach of his right to privacy and brought an action against his employer.

The Romanian Domestic Court held in the employer’s favour and confirmed that the employer had acted reasonably in the circumstances, as Mr Bărbulescu was fully aware that he was prohibited from using the workplace IT equipment for personal use.

Decision

This recent decision reverses the previous ruling of the ECHR and confirms that although Mr Bărbulescu was aware that he was forbidden to use work computers for personal purposes, he was not informed by his employer that his usage would be monitored.

The ECHR held that the Romanian Domestic Court had failed to strike a fair balance between the employer’s and the employee’s interests, and ruled in favour of Mr Bărbulescu, that this was a breach of his Article 8 right to privacy.

Consequences of Monitoring Emails

As a result of this decision, workers can now feel that they have a right to a certain degree of privacy in the workplace. Employer’s now have an obligation to ensure that employees are informed in advance of the nature and extent of any email monitoring.

Should an employer wish to monitor their employees’ emails and messages, the employer should ensure that the employee is fully informed in advance that their communications may be accessed and monitored by the employer. In order to address this, employers should ensure that their policies and procedures in this area are up to date and reflective of the recent decision.

*All information is correct at the time of publishing

Sarah Collier

Sarah is one of our Employment Law Specialists from Napthens Solicitors. Read more

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