Employee email monitoring in the workplace and employee rights to email privacy

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It is not often that human rights arguments get heard in the workplace. They do happen, however, and recently the European Court of Human Rights made an important ruling which overturned a previous decision regarding employer’s practices of email monitoring in the workplace.

The monitoring – which included reading an employee’s personal emails – was a breach of their human rights as they had employee rights to email privacy.

Employer implemented email privacy policy in the workplace.

Article 8 of the Human Rights Act 1998 protects an individual’s right to respect for private and family life, home and correspondence. Correspondence includes letters and emails.

Since the introduction of email communication within businesses, employers have implemented more than one email privacy policy in the workplace to ensure that employees do not misuse the technology. These policies are perfectly acceptable provided that certain safeguards also get implemented to avoid claims of an Article 8 breach.

Employer begins monitoring employee emails.

An employer in Romania asked one of its employees, Barbulescu, to create a Yahoo Messenger email account for work purposes so that he could communicate with clients. Barbulescu got told that he was not to use the account for sending personal, non-work-related emails.

However, the employer began monitoring employees email and internet use at work. While monitoring employee emails, he found personal emails were sent from the account to Barbulescu’s fiancée and brother. After he began monitoring staff emails, the employer discovered that they contained confidential information regarding the employee’s health and were occasionally intimate in nature.

When the employer raised the issue, Barbulescu tried to explain and maintained that he had not broken the rules. The employer then presented him with a transcript from the employee email monitoring of the exchanges and was dismissed.

Barbulescu alleged having his emails monitored breached his right to email privacy in the workplace and took the claim to the European Court of Human Rights (ECtHR). The ECtHR disagreed, declaring the employer had permission to read the emails.

Decision Overturned-Should Managers Monitor Employee Email and Internet Usage and Employee Email Privacy.

The Grand Chamber of the ECtHR has subsequently found that Barbulescu’s right to privacy did get breached. Integral to the decision was the lack of evidence Barbulescu was told before monitoring emails in the workplace began. There had been no consideration by the previous courts as to whether there had been a less intrusive method of dealing with the potential breach of email rules other than breaching the employee email privacy policy. There is no more opportunity for appeal, so this is the final decision.

Employers must understand the implications of this decision. Misleading reports of the initial decision led employers to believe they could start monitoring staff emails freely – this was not the case. Similarly, the Grand Chamber ruling does not prohibit all monitoring.

In Another Case, NHS Manager Sends Malicious Emails To Colleagues- Is it legal to monitor employee emails?

An NHS manager had been in a personal relationship with a nurse, which had broken down. The manager suspected that the nurse then began a relationship with a colleague, and he took this quite badly. The manager started monitoring emails in the workplace, and the nurse and the colleague began receiving anonymous malicious messages, as did several other staff members.

The manager was reported to the police for harassment, and they found evidence to connect the emails to the manager’s mobile phone. Once the investigation was concluded, the police gave the evidence to the employer, who then used it as evidence in their disciplinary proceedings against the manager. The manager claimed that his employer had breached his human rights by monitoring emails in the workplace.

The Employment Appeal Tribunal decided that the employer was entitled to read the communication because, although relationships between colleagues were private, the relationship had been brought into the workplace by emails, which impacted work-related issues.

So, Is it legal to monitor employee emails at work? In this case, yes, because a personal relationship between two work colleagues had been brought into the working environment using company email accounts.

Practical Considerations for email monitoring in the workplace

Email monitoring in the workplace is allowed for employers provided specific criteria are met, including:

Have a legitimate reason for email monitoring in the workplace.

Balance your business needs against the employee’s rights to their private life. The absolute right to look at all emails may set the employee’s expectation of no privacy but is that proportionate?

Warn employees clearly in advance that following company rules, you will monitor their emails and the reasons for monitoring.

Consider whether there are less intrusive methods for dealing with a potential breach of your rules than employee monitoring and reading employees’ email messages.

Legislation on Monitoring of Employee Email use and Email Privacy in the Workplace

Keeping up-to-date with current legislation on monitoring of employee email use is something every employer needs to do.

Maintaining an up-to-date IT policy which gets reviewed on an ongoing basis;

Set guidelines and tell employees whether they are permitted to use equipment provided by work, or accounts set up to assist with work, for personal use;

Ensure staff know that you will be monitoring employee emails and communications when personal use is not permitted so that the employees can hold no reasonable expectation of privacy.

Dismissal for the personal use of IT equipment will not always lead to a fair dismissal. You should always ensure an appropriate and the proper procedure gets followed when dealing with it; Don’t use these cases as blanket permission to snoop and monitor employees’ emails and breach the employee rights to email privacy policy.  There will be a reasonable expectation of privacy in some cases, e.g. if an employee leaves their private emails open at lunchtime when you permit personal usage of a work computer.

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Elena Boura