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How Private is an Employee's 'Private Correspondence' in the Workplace?

The  European Court of Human Rights (ECtHR) considered this issue in the recent case of Bărbulescu v. Romania

Mr Bărbulescu was employed as an engineer in charge of sales.  He was dismissed in 2007 due to his personal internet use at work, which was in direct contravention of the company’s policies.  Part of the evidence relied on by the employer during the disciplinary hearing was private emails Mr Bărbulescu sent from his work related yahoo email and messaging account, which had been set up solely for use in the business.  The employer had removed the identity of the recipients of the emails and had not disclosed the content, aside from stating that they were obviously not work related.  Mr Bărbulescu challenged the employer’s decision through the national, Romanian, courts, eventually reaching the ECtHR, where his dismissal was upheld. 

The ECtHR confirmed that accessing personal emails from a professional email account did engage the protections of Article 8 of the European Convention of Human Rights - the right to respect of private and family life, home and correspondence.  However, the Court further confirmed that the monitoring of the emails, and their subsequent use at the disciplinary hearing did not amount to a breach Mr Bărbulescu’s Article 8 right.  The Court stated that although the account was created solely for work related use, Mr Bărbulescu was still entitled to an expectation of privacy.  Nevertheless, the Court concluded that the employer’s monitoring of the emails was a “proportionate interference” with Mr Bărbulescu’s Article 8 right and that the monitoring was reasonable in the context of disciplinary proceedings.  Further, the Court determined that it was reasonable for an employer to check that employees are completing work tasks during work hours and that in this instance, the emails were accessed for the client communications which were believed to be on them. 

Employers should be aware that this decision does not provide them with a carte blanche to examine every email an employee sends. The decision does, however, confirm the rights of employers for responsible, and proportionate, monitoring of their employees’ communication.  Employers should not monitor purely personal correspondence which is separate from the employment and the employer’s devices.  Where however, an employee accesses their personal email on a work computer, or sends a personal email from a work account there is, undoubtedly, a grey area and a balance must be struck between the employee’s right to privacy and the employer’s right to ensure the employee’s compliance with the expectations placed upon them. 

Employers should have clear guidelines about internet usage and private communications in the workplace. These guidelines should be readily accessible to employees, who should consider them carefully.

For more information please contact Martin Sinclair or Nicola Gray or call 01224 632464.

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