Can you monitor your employees personal communications at work?

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25 September, 2017

On Tuesday 05 September 2017 the European Court of Human Rights ('ECHR') established a significant legal precedent restricting the extent to which employers can monitor employees office emails.

Summary of the case

Bogdan Bărbulescu, a Romanian software engineer, was dismissed after his employer had monitored his personal emails and uncovered messages that were exchanged between the employee, his fiancé and his brother, some of which were intimate in nature. Bărbulescu was unaware that his employer had been reading these private conversations, despite knowing that the employer's internal policies prohibited personal use

The appeal
Bărbulescu appealed to the ECHR for a final decision based on his Article 8 right to respect for private and family life. He argued his right had been breached when his employer monitored his private emails and subsequently dismissed him.

The Decision
The Romanian Courts originally dismissed the claim and found that the company were within their right to dismiss, as did the judges in the Lower Chamber of the ECHR.

However, the highest chamber of the ECHR has now overturned the decision and found in favour of Bărbulescu. Do not be mistaken - the decision does not mean that employers are not entitled to monitor employees personal communications at work and in fact the ECHR stated that it is perfectly reasonable for employers to want to ensure that their employees are carrying out the work they should be during the course of their working day.

However, the ECHR upheld his right to privacy and stated that "An Employer cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary."

Attempts by employers to prohibit the use of personal communication are often made but this is becoming increasingly difficult to manage as instant messaging platforms such as Whatsapp and Facebook are fast becoming common methods of communication within the workplace.

The judgement doesn't prohibit the monitoring of personal communications but it sets high thresholds for companies to be able to show sufficient justification to do so. If employers wants to monitor and restrict personal use of communications at work their policies must be specific and any measures in place must be proportionate.

We would advise that adequate monitoring policies and procedures are put into place and existing policies and procedures are reviewed, to ensure they are compliant with best practice. It is also key that internal rules are clearly communicated to employees. If you are looking for any more information with regards to our services view our Employment & HR section. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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