There is much news relating to the right to respect of private life and correspondence breached if and when an employer is thinking of monitoring an employee’s personal email. A recent high profile case confirms the position that monitoring an employee’s personal email is not something that employers can do without just cause.
In Barulescu v Romania, Mr Barbulescu’s employer had asked him to set up a Yahoo email account that he would use for work. The employer accessed the e-mail account in the belief that it contained non work-related messages. The employer’s position was that since the email account had been set up at the Company’s request, its access to the account was legitimate.
The European Courts of Human Rights (ECHR) concluded that there had been no violation of Mr Barulescu’s right to a private life since, in this case, monitoring an employee’s personal email had been limited, proportionate and it was not unreasonable for an employer to want to verify that employees’ were in fact working during business hours.
However, the decision does not give employers the right to snoop on employees’ personal emails. It does not overrule previous case law on the reasonable expectation of privacy and the need for any interference in privacy to be proportionate. Existing UK legislation also places important limitations on employers’ power to monitor their employees’ private communications.
Despite what has been widely reported in the press, this case does not set a precedent for employers thinking of monitoring an employee’s personal email without cause. The decision must be viewed in the context of both existing ECHR case law on privacy at work and existing UK legislation, including the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, which already place important limitations on employers’ power to monitor their employees’ private communications. Part 3 of the Information Commissioner’s “Employment Practices Code”, issued under the Data Protection Act, contains important guidance for employers on how to comply with data protection principles in the context of email and internet monitoring of employees’ personal email must be carried out subject to reasonableness and proportionality in the particular circumstance of the case.
Businesses must have a well-drafted IT/communications policy in place which deals with the reviewing and monitoring of employees’ personal use of company IT systems and the use of e-mail in the workplace. The policy must be communicated to employees’ and enforced consistently. Ensuring your business has a clear policy in place means that the legitimacy of any action you should take as a business will depend on whether it strikes a fair balance between the employee’s right to privacy and the employer’s right to protect its business.
If you need help developing an appropriate IT / Communications Policy for your business, please contact Metis HR now on 01706 565332 for a no obligation initial consultation.