We have recently reported on an important European Court of Human Rights decision (Barbulescu) in which the ECHR held that Mr Barbulescu’s emails should not have formed evidence against him during his dismissal for excessive use of personal messaging during work time.

This was because the personal messaging in question, albeit on a company messaging account, comprised 45 pages of messages exchanged with his brother and his fiancée, some of them of an intimate nature. In the circumstances of this particular case, the ECHR found that the relevant company policy meant that there was no reasonable expectation amongst employees that their communications would be monitored. This was despite the fact that the company had circulated an information notice telling employees that private use of the internet was forbidden, and that their work would be monitored and the Court’s conclusion that Mr Barbulescu had in fact the notice. Consequently, Mr Barbulescu’s ‘Article 8’ human rights (to a private life) had been infringed.

This has widely been viewed as an alarming development by employers here in the UK. Where should employers draw the line between what the Court recognised as a legitimate interest in the smooth running of their operations, and the right of employees have to a private life?

Certainly, it used to be the case that a company policy or the contract of employment reminding employees that they should expect no privacy at all in the workplace would be sufficient. This is no longer the case. As the Court suggested, employees’ rights to a private life should not be whittled down to nothing just because they are at work.

Practical steps we suggest in order to strike the right balance are as follows (although, as usual, individual circumstances and business requirements need to be properly assessed):

  • Notify employees in clear, separate, terms that they can expect their communications and internet usage to be monitored.
  • Explain how this will be done, and when.
  • Explain why it is being done.

An assessment should also be made, and recorded somewhere, considering whether or not the monitoring is more than is strictly necessary to achieve the company’s objectives. To this end, we recommend that companies make a note of having considered the following:

  • Why it is doing the monitoring, how and when.
  • What consequences these might have for employees.
  • How any negative consequences on employees can be minimised.
  • How the intrusiveness of the monitoring can be minimised (e.g. by monitoring quantity rather than content of communications, restricting ambit of CCTV coverage etc.)
  • Who should have access to the material being monitored.
  • Whether monitoring of all communications is necessary, or just some of it. For instance, some employers will not monitor the content of communications marked personal.

If you have any questions about whether or not you can monitor employees’ communications, or whether, as an employee, you should have had yours monitored, please talk to our expert team. This may be particularly relevant where there has been a dispute, or a dispute is envisaged.

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