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    Monitoring Employees`emails

    Monitoring Employees`_emails

    Is the right to respect for private life and correspondence breached if employers monitor employees’ personal emails at work? No, subject to reasonableness / proportionality, according to the European Court of Human Rights in Barbulescu v Romania.
    In the newly released case of Bărbulescu –v- Romania, the European Court of Human Rights (the “ECHR”) has ruled that an employer in Romania did not breach the privacy rights of its employee when it monitored personal chats on a Yahoo Messenger account which he was meant to use for business purposes.

    The Facts

    Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life. This was in breach of his employment contract. His employer, discovering this accidentally, dismissed him. These messages were sent during working hours and from his work computer. Mr Bărbulescu’s employment was terminated for breach of the company’s internal regulations prohibited. After challenging his dismissal through domestic forums, Mr Bărbulescu argued that the decision to terminate his employment had been based on a breach of his privacy which was protected by Article 8 of the European Convention on Human Rights (a right to respect for private and family life, the home and correspondence).

    The Court`s Decision

    European Court

    European Court of Human Rights

    The European Court of Human Rights held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Rumanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The European Court was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours.

    The relevance of this Decision

    This case underlines the importance of issuing clear directions to employees around the use and monitoring of email. Up to this certain employees may have thought that their private communications were just that, private!

    Data Protection considerations

    In a recent review by Legal Island it was noted that the issue of monitoring employee emails raises Data Protection considerations. Under the Data Protection Acts 1988-2003 (the “DPA”), personal data must be obtained fairly for specific, explicit and legitimate purposes. Employers must therefore act transparently in how they collect and manage employee information. To meet this requirement, contracts of employment and specific policies should clearly inform employees about any monitoring.

    Data_Protection Commissioner

    Data Protection Commissioner

    The Office of the Data Protection Commissioner (the “ODPC”) has guidance on staff monitoring and emphasises the importance of clearly drawing employees’ attention to “acceptable use policies” governing their use of electronic resources.

    Importantly, employers cannot rely solely on the fact that they have notified employees that their email will be monitored. The second key requirement is that there is justification for the monitoring and that it goes no further than necessary for the legitimate purposes of the employer. An employee retains their privacy and data protection rights even when in the workplace and any limitation of this right must be proportionate to the likely damage to the employer’s legitimate interests.

    Following this new ECHR decision, employees will be more circumspect about private email communication from the workplace.