On 5 September 2017, the Grand Chamber, which hears appeals from the European Court of Human Rights, confirmed that an employer’s access to its employees’ messages on the employer’s communications system without first obtaining the consent of its employee was unlawful and amounted to a breach of the Right to Privacy under Article 8, of the European Convention on Human Rights (Barbulescu v Romania 2017).

Background

In Barbulescu v Romania, the employer’s computer usage policy prohibited employees from using work communications systems for personal messaging. The employer had not sought the employee’s consent to monitor his emails and it was disputed that the employer had notified the employee that his computer usage may be monitored. The employer did access the employee’s communications on the Yahoo Messenger service, which it had asked him to use for work purposes. It found that he had used it for personal messaging and dismissed him for a breach of its computer usage policy.

The employee, having received no redress in the domestic courts of his country (Romania), which all found that his employer had been entitled to access his emails and to dismiss him, took his case to the European Court of Human Rights claiming that his dismissal amounted to a breach of his rights under Article 8 to respect for his private and family life, his home and his correspondence. The ECtHR also found in favour of the employer. However, had the messages been marked ‘Private & Confidential’ in the title box, the employer’s access of them very likely would have been a breach of the employee’s Article 8, right to privacy. (Yahoo messenger service does not have a title box). The employee then appealed to the Grand Chamber of the ECHR, who found that his dismissal was in breach of his right to respect to his correspondence under Article 8 and the domestic courts had failed to protect that right and he was accordingly entitled to compensation.

Implications

UK employers should:

  1. ensure that their contracts of employment state that the employer may monitor the employee’s emails and that its employee consents to such monitoring;
  2. have an internet, email and communications policy, which includes the reasons why it may monitor emails, and states that work emails should not be used for personal messaging;
  3. make sure its employees sign the contracts and
  4. run through the terms of the policy in an induction programme or other form of in-house training.

Many employers do choose to allow reasonable usage of computers for personal purposes. In this case, employers should still ensure that they have obtained employee consent to monitor emails, and that they have an internet, email and communications policy which includes advising their employees to mark any personal emails private & confidential.

Employers should take legal advice before accessing an employee’s email (or other internet message) marked private & confidential.

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