It is not often that human rights arguments are 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 email monitoring practices.
The monitoring – which included reading an employee’s personal emails – was a breach of an employee’s human rights.
Right to Privacy
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 in the workplace, employers have implemented policies with the aim of ensuring that employees do not misuse the technology. These policies are perfectly acceptable provided that certain safeguards are also implemented to avoid claims of an Article 8 breach.
Employer begins Email Monitoring
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 was told that he was not to use the account for sending personal non-work related emails.
However, the employer found that personal emails had been sent from the account, to Barbulescu’s fiancée and brother. The emails contained personal information regarding the employee’s health and were occasionally intimate in nature.
When the employer raised the issue, Barbulescu maintained that he had not broken the rules. The employer then presented him with a transcript of the exchanges and was dismissed.
Barbulescu alleged the monitoring was a breach of his right to privacy and took the claim to the European Court of Human Rights (ECtHR). The ECtHR disagreed, declaring the employer had been permitted to read the emails.
The Grand Chamber of the ECtHR has subsequently found that Barbulescu’s right to privacy was breached. Integral to the decision was the lack of evidence that Barbulescu had been told in advance of the monitoring and there had 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. There is no more opportunity for appeal, so this is the final decision.
It is important for employers to understand the implications of this decision. Misleading reports of the initial decision led employers to believe they were able to monitor employees’ emails freely – this was not the case.
Similarly, the Grand Chamber ruling does not prohibit all monitoring.
Email monitoring is allowed for employers provided a certain criteria are met, including:
- Have a legitimate reason for email monitoring.
- Balance your business needs against the rights of the employee to a private life. The unlimited 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 their emails will be monitored, and the reasons for monitoring.
Consider whether there are less intrusive methods for dealing with a potential breach of your rules than reading the emails.