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Can you read your employees’ e-mails?

There has been a great deal of recent coverage in the media about the decision of the European Court of Human Rights (ECHR) in the case of Barbulescu v Romania. The decision was widely reported as giving employers the right to check all their employees’ communications including social media and private e-mail messages. Can this be true?

The short answer is no. As is often the case, the accuracy of the media’s reporting of the judgement left a lot to be desired (so much so that the body that oversees the ECHR issued a statement criticising the misleading coverage given to the case in the British press). What follows is hopefully a more accurate summary of an employer’s rights in this area.

Mr Barbulescu’s case

If we start with Mr Barbulescu, he was dismissed by his employer when they discovered that he had been sending private messages in working hours to family and friends, covering such topics as his health and his sex-life. For this reason they dismissed him. Mr B issued proceedings which went all the way to the ECHR.

The first and most important thing to point out is that the ECHR was reviewing whether the Romanian courts had breached Mr B’s privacy by not excluding all evidence relating to the private messages. The court was only indirectly concerned with the actions of the employer.

The right to respect for private and family life, the home and correspondence is protected under Article 8 of the European Convention Rights. Mr B alleged that this right had been breached by the Romanian courts who should have excluded all evidence relating to the private messages. The Court agreed that the conduct of the employer prior to and after the dismissal and the fact that this conduct was revealed during the subsequent litigation meant that there was a potential breach of Article 8 but it decided on balance that, on the facts, the Romanian courts were entitled to act as they had done.

Several factors were crucial here. First, the court took account of the fact that the messaging service had been set-up specifically at the behest of the employer for the purposes of work-related communications. This was not the employee’s private e-mail account. Second, it felt that it was legitimate for the employer to check to see if it’s employees where completing their tasks whilst at work. Thirdly, the Court considered it relevant that the employer had accessed the messages believing that they would only find work-related messages – it did not go looking for personal messages. Fourthly, the employee had been warned that the messaging system was for work-related messages only. The Court also considered it important that, whilst the Romanian courts did refer to the existence of the personal messages, it did not permit discussion of the content of those communications. The Court therefore rejected Mr B’s claim.

What must be emphasized is that at no point did the ECHR state that employers in general are entitled to read the private messages of their employees. In fact, this case is better understood as a rare example of an occasion when an employer was permitted to read an employee’s private messages.

When can an employer read its employees’ messages?

There is no definitive list of when something is private and when it is not (and this case does not change that). A lot will hinge on whether the employee in question has a ‘reasonable expectation of privacy’. This is often a matter of common sense. For example, if an employer happened to notice an employee had left their private Hotmail account open on their work PC whilst they had gone to make a cup of coffee, most people would agree that it would be unacceptable for the employer to start trawling through these private messages in search of what they might find. An employment tribunal would almost certainly agree.

On the other hand, the position is less clear cut when it comes to an internal work e-mail account. Again, the question that must be asked is ‘does the employee have a reasonable expectation of privacy’? Whether they do will depend on the circumstances, such as whether the employees have been warned that their messages will be monitored and why the employer has accessed them.

Employers therefore need to be very cautious before they check the private communications of their employees and even more wary of following the questionable employment law reports that appear in the press.

James Haley, Solicitor at Just Employment SolicitorsJames Haley, Solicitor & Director at Just Employment Ltd

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