Employers can read your Private Emails at Work..

Employers can read your Private Emails at Work..

Published: 27 February 2016

There has been a lot of panic among employees recently over a judgment by the European Court of Human Rights (ECHR), given that it is not uncommon for employees at every level to send personal emails to friends and relatives during working hours.

Although the ECHR judgment refers to a Romanian case, its impact on the UK is important, as it also applies to our Employment cases, and will ultimately be referred to in the Employment Tribunals up and down the country.

Background

The case relates to Mr B─ârbulescu (“B”), a Romanian national, who was employed by a private company as an Engineer in the sales department. At his employer’s request, he created a Yahoo Messenger account in order to respond to clients’ enquiries.

On 13 July 2007 his employer informed B that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed that he had used the internet for personal purposes, contrary to internal regulations. B denied this allegation. He was then presented with a transcript of messages he had exchanged with his fiancée and his brother (among others), some of which related to personal matters about his health and sex life. His employment was then terminated on 1 August 2007 for breach of the company’s regulations.

B argued that his employer had violated his right to correspondence protected by the Romanian Constitution and had breached the Criminal Code. The Romanian County Court dismissed his complaint on the grounds that his employer had complied with the Labour Code provisions on disciplinary proceedings and that he had been duly informed of the employer’s regulations prohibiting use of company resources for personal purposes. He appealed but was unsuccessful. B then applied to the ECHR contending that his employer’s conduct had disproportionately infringed his rights.

The ECHR held that there was no violation of an employee’s right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life, the home and correspondence) in circumstances where an employee had been dismissed for using the company’s internet for personal purposes during working hours.

While the employee’s Article 8 right had been engaged, the ECHR held the employer’s monitoring of B’s communications pursuant to workplace rules and regulations had been reasonable in the context of disciplinary proceedings, and the Romanian courts had acted appropriately in balancing the employee’s rights against the interests of his employer.

It stated that although the purpose of Article 8 is essentially to protect an individual against arbitrary interference by the public authorities, it does not compel the State to abstain from such interference. The Court had to examine whether Romania, in the context of its positive obligations under Article 8, had struck a fair balance between B’s right to respect for his private life and correspondence and his employer’s interests.

In the Court’s view, it was not unreasonable for B’s employer to seek to verify that employees were completing their professional tasks during working hours. Also, B’s employer had accessed his messaging account in the belief that it contained client-related communications only.

B had been able to raise his arguments relating to the alleged breach of his Article 8 right before the domestic courts, which had duly examined his arguments and found that his employer had acted in accordance with the Romanian Labour Code’s provisions on disciplinary proceedings. Mr B’sdisciplinary breach – namely, his use of company resources for personal purposes, had been established, and it was clear from the domestic court judgments that they had used the transcript of B’s communications only to the extent that it proved that breach.

The ECHR accordingly concluded that the domestic courts had struck a fair balance between B’s rights under Article 8 and the interests of the employer.

What does this case really mean for UK employees and employers?

There are a number of UK laws which cover, either directly or indirectly, employers’ monitoring of employees’ use of the internet.

Some of the legal issues in this case arising out of surveillance of employees’ use of email and the internet, are already covered in the UK under the Data Protection Act 1998 and guidance is given to employers in the Information Commissioner's Employment Practices Data Protection Code.

Also, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000 are relevant in this situation, and to some extent the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 is also relevant to employees and employers in the UK.

The DPA 1998, together with the Employment Practices Data Protection Code (Employment Practices Code) issued by the Information Commissioner to assist employers with interpreting the DPA 1998, is also relevant in this area. Employers who monitor also need to seek advice on the Regulation of Investigatory Powers Act 2000 (RIPA 2000). Also, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 has some relevance.

Generally there are strict controls regarding the monitoring of electronic systems in the workplace. However there are a number of methods by which employers might seek to monitor their employees' use of electronic systems in the workplace to ensure no unlawful acts are carried out. However this monitoring concerns such sectors as the financial services sector where there are strict regulatory requirements in place.

The Barbulescu case raises issues of rights to privacy and family life under The European Convention on Human Rights which is incorporated into UK law by the Human Rights Act 1998 (HRA 1998). However, although the appeal failed for Mr Barbulescu, the UK has additional legislative protection in the form of other Statutes and Regulations which gives individuals greater protection, here in the UK.

In addition, UK law imposes a duty of trust and confidence between employer and employee, so that an employer has some duty to safeguard the employee and their privacy and give reasonable warning about monitoring.

In conclusion, there is no need for employees to panic, just yet.

If you are an employer or an employee and would like any specific advice on Employment Law, please contact Cyril Dennemont, Partner, Employment Department.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.