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Do employers have the right to read employee's personal emails?

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Case Update: Barbulescu v Romania (application no. 61496/08)

The European Court of Human Rights (ECHR) have recently held that, subject to reasonableness and proportionality, the right to respect for private life and correspondence is not breached if employers monitor employees’ personal communications at work. The case concerned Mr Barbulescu’s dismissal by his employer, for having used the company’s Internet for personal purposes during working hours in breach of internal regulations.

Background

At his employer’s request, Mr Barbulescu set up a Yahoo Messenger account to allow him to respond to clients’ enquiries. The employer’s company rules made it clear that using computers for personal purposes was not permitted. Approximately three years following the setup of the Yahoo Messenger account, his employer monitored his use for a period of just over a week and found that he had been using it for personal use during working hours.

Mr Barbulescu had used the Yahoo Messenger account to send and receive personal messages in relation to his health and sex life with his financee and brother. Upon discovering this his employer dismissed him for breach of the company rules.

Mr Barbulescu brought an employment claim against his employer which alleged that his dismissal was void since his employer had breached his right to privacy by accessing his personal communications. He was unsuccessful in this claim and brought his case before the ECHR on the basis that his employer had breached Article 8 of the European Convention on Human Rights (right to respect for private and family life).

The ECHR’s Decision

The ECHR confirmed that Article 8 is engaged to protect employees who use their employer’s communications systems for private purposes and that the right is not absolute. Further, that there had been no violation of Article 8 on the basis that a fair balance had been struck between the employees’ rights and the employer’s interests in being able to verify that their employees were completing professional tasks during working hours.

Key points to take away from this case

Seeing the email subject “No work done today, I am hungover” is not something an employee would necessarily want you to read! Employees have a right of privacy at work and employers have the right in limited circumstances to monitor private communications at work. Therefore, you do not have free rein to snoop through your employee’s personal communication.

The key point to take away from this case is that any monitoring of employee’s personal communications must be carried out subject to reasonableness and proportionality. Further, having a clear policy in place which outlines your rules and expectations in such circumstances is vital.

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