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Workers privacy breached by employer who monitored messages

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The European Court of Human Rights has ruled that an employee’s right to privacy was breached when his private messages were monitored by his employers.

The recent decision relates to the case of Barbulescu v Romania. Barbulescu had been employed in sales and was asked to set up a Yahoo Messenger account to deal with enquiries from clients. It was made clear by his employers that the account should not be used for any private messages.

Three years after the account was set up, Mr Barbulescu’s employers informed him that the account had been monitored and he was dismissed for using the account to exchange private messages with his fiancée and brother.

Mr Barbulescu claimed that his employer had failed to protect his right to a private life when monitoring the account. Although his claim was rejected by the Romanian courts, the European Court of Human Rights (ECHR) did rule in his favour.

In our latest article, the legal experts at LawforEmployers take a look at what this decision means for employers and the steps they should take when monitoring employees.

How far does employee right to privacy extend?

Commenting on Barbulescu v Romania, the ECHR grand chamber judgment said an employer “cannot reduce private social life in the workplace to zero”.

Under the European Convention of Human Rights, everyone has the right to respect for their private and family life, their home and their correspondence.

All employers should take this into account, as courts and tribunals will look to interpret all legislations consistently within this right.

In most cases, any emails or messages sent and received through private accounts should be considered as private and there would be no justification for employers to monitor them.

What activity can an employer monitor?

All employers should first of all consider why they need to monitor an employee’s emails and what they are attempting to protect.

You should have legitimate grounds for monitoring employee emails – ensuring employees are complying with the law and their obligations is likely to be a legitimate reason.

However, it is vital that employers provide detailed information to employees in advance to explain what they are doing and why.

Monitoring email content from private accounts would be viewed as a particularly intrusive form of monitoring. As in the case of Barbulescu v Romania, employers could find this very difficult to justify.

Can an employer dismiss for misconduct or damage to reputation?

Employers can dismiss fairly for misconduct even if the misconduct takes place outside of the workplace. As always the question for employers to ask is whether the actions of the employee could affect their work in some way or whether there could be reputational damage to the employer.

Sending emails or posting messages outside of work can at times amount to misconduct. For instance, we have already seen numerous cases of employees posting inappropriate messages on Facebook which could cause reputational damage leading to fair dismissals.

You can get more advice on following a fair procedure when dismissing an employee here.

Get the advice you need from the legal experts at LawforEmployers

At LawforEmployers, our specialist solicitors are available to provide the advice you need to keep your business complaint and up to date. We will ensure that you have the correct procedures in place to protect you.

If you’d like to talk to one of our dedicated employment solicitors, call us now on 01282 695 400.

Or, if you don’t have time to talk to us right now, you can book your free consultation by completing our online contact form.