Can employers read your private emails at work?

It’s a newspaper headline it must be true, right?  Wrong!

A number of newspapers have recently carried headlines boldly proclaiming that employers can now read the private emails and messages of employees at work (or words to that effect).

It may not surprise you to learn that this is a gross over-simplification of the position.  In reality, the case of Barbulescu v Romania which prompted these alarmist headlines has not changed the position in UK law on the scope of an employer’s right to monitor communications.

Mr Barbulescu (“B”) was employed by a private company (“the employer”) as an engineer in charge of sales.  At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to enquiries from clients.  The employer operated a strict policy prohibiting all personal use of company facilities, including computers.

On 13 July 2007 the employer informed B that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed he had used the internet for personal purposes contrary to the employer’s regulations.

B denied any personal use of his computer saying he had only used it for professional purposes.  The 45 page transcript subsequently presented to B by his employer demonstrated he had breached the employer’s policy, exchanging messages with his fiancée and his brother.  Relying on the breach of policy, the employer terminated B’s employment on 1 August 2007.

B contended that by accessing his communications, his employer had violated his right to privacy.  His complaint was dismissed by the Bucharest County Court.  His appeal against that decision failed and he brought a claim in the European Court of Human Rights (“ECHR”).

The ECHR was asked to decide whether the upholding of B’s dismissal constituted a failure by Romania to protect his rights under Article 8 of the Convention (the right to respect for private and family life, the home and correspondence).

The majority of the ECHR (six votes to one) accepted that there had been an interference with B’s right to respect for private life and correspondence within the meaning of Article 8; but concluded that there had been no violation of Article 8 as the employer’s monitoring was limited in scope and proportionate.  In the Court’s view it was reasonable for B’s employer to seek to verify that its employees were completing their professional tasks during working hours.

Consequences for employers in the UK?

Although it makes for an interesting read, this case will have no impact on the advice we provide employers on the subject of monitoring at work.

The case does, however, highlight the importance of introducing an IT and Communications Systems Policy, setting out the standards of conduct expected and when monitoring may occur.  If you already have one then review it from time to time to ensure it is still lawful and appropriate.

It is also advisable to have a section on Social Media in this policy, or a separate Social Media policy, to minimise the risks to the business through use of social media.

When deciding whether to monitor workers it is primarily the Data Protection Act 1998 that will need to be adhered to.  Monitoring must be done in a way which is consistent with the Act.

It is possible to justify monitoring if it is reasonable and proportionate in the circumstances.

Part 3 of the Employment Practices Code, available on the Information Commissioner’s Office website, is a helpful source of information on this subject, containing guidance and recommendations:
https://ico.org.uk/media/for-organisations/documents/1064/the_employment_practices_code.pdf

For further information, contact a member of Furley Page Employment Law team on 01227 763939.