Monitoring Employee's Personal Messages

Much discussion has taken place about the recent case of Barbulescu v Romania in which an employee contended that his dismissal, for sending personal e-mails at work, was not only unfair but was also a breach of his right to a private life. The European Court of Human Rights (ECHR) disagreed on both counts. But what does this mean for employers and employees?

Summary of Case

Mr Barbulescu was employed as an engineer and was asked, by his employer, to set up a Yahoo Messenger service for work purposes. His e-mails were monitored for the period 5 – 13 July and were found to include personal messages between the employee, his brother and his fiancée. When challenged about this, Mr Barbulescu said that his account had only been used for work purposes but the company produced 45 pages of evidence which showed that this was not the case.

The ECHR held that accessing an employee’s personal messages and using them to justify a dismissal is a potential breach of an employee’s right to a private life. However, if the employer’s actions are, for example, confined to checking that the computer is only used for work purposes, and the way the search is carried out is proportionate then there will be no violation of the employee’s right.

What does this mean for employers?

The case primarily centred around Mr Barbulescu’s claim that his right to private life had been breached by his employers. Employers can, therefore, be reassured that limited, reasonable monitoring of an employee’s activities for legitimate business purposes is permitted.  It does not, however, mean that dismissing an employee for using company computers for personal reasons will always be fair.

What should employers and employees do to protect themselves?

We would recommend:-

• Employers adopt and publish clear computer, telephone and e-mail usage policies that are easily accessed and understood by employees. 
• Employers notify employees that their e-mails, phone calls and internet access may be monitored and consider obtaining their written consent to such monitoring.
• Where personal usage is permitted, employees mark e-mails as “private” or “personal”.
• Any monitoring is limited to legitimate business purposes and is carried out by properly trained staff in a proportionate way.
• Equal Opportunities Policies make clear that accessing or sending offensive material is a disciplinary offence.

If you have any questions please do not hesitate to contact Debbie Sadler on 0118 955 9607 or at d.sadler@hewetts.co.uk.

Published on 26/01/2016