Can an employer monitor the private messages of an employee’s work-related email account?

Email PrivacyWritten by Brabners LLP

In the case of Barbulescu v Romania the rarely convened Grand Chamber of the European Court of Human Rights (‘‘ECHR’’) has asserted that an employee’s Article 8 privacy rights were infringed as a result of the employer’s decision to monitor their work related Yahoo email account.

Background facts

The emails had been sent on the Yahoo email account by the employee to his fiancée and brother (‘‘Emails’’). The contents of the Emails were of a very intimate and personal nature. Following the employer’s discovery of the Emails the employee was dismissed for a breach of the employer’s IT policy. Throughout the dismissal process of the employee, the Emails were printed and used by the employer as evidential documents justifying the dismissal. After a protracted legal process, involving numerous intervenors and a finding against the employee in the Romanian courts, the case found its way all the way up to the Grand Chamber of the ECHR. The case was heard before a panel of 17 judges.

Decision of the Grand Chamber

In its decision, the Grand Chamber set out a number of factors to be considered when assessing the appropriate level of monitoring of a work-related email account:

  • Whether unequivocal notification of the monitoring had been provided to the employee;
  • Whether the extent of the monitoring and the degree of intrusion into the employee’s privacy was appropriate;
  • Whether the employer had provided justifiable reasons for monitoring the employee’s communications and the content within them;
  • Whether it is possible to establish a monitoring system based on less intrusive methods;
  • Whether the consequences of the monitoring for the employee had been balanced against the use made by the employer of the content discovered as a result of the monitoring; and
  • Whether the employee had been provided with adequate safeguards by the employer, especially where the monitoring was particularly intrusive in nature.

After assessing these various factors, the Grand Chamber (by majority) concluded that the Romanian courts had not adequately protected the employee’s Article 8 rights. However, the ECHR dismissed the employee’s claim for damages, determining that there was no causal link between the breach of the employee’s Article 8 rights and the damages being claimed which flowed from the employer’s dismissal.

Conclusion

While the case is of topical interest, the reality is that in the UK this decision is of limited relevance. This is because this area of law is regulated by legislation including the Data Protection Act 1998 which places statutory limitations on an employers’ ability to monitor their employees’ private email accounts.

Nevertheless, the factors cited above provide important guidance for an employer to consider when demonstrating that they have achieved the appropriate balance between protecting an employee’s right to privacy against the interests of their business.

Disclaimer: This bulletin is for general guidance purposes only and should not be used for any other purpose. This article is written by Brabners and reproduced with their permission. Brabners is a Limited Liability Partnership