As readers may be aware, there has been much discussion generated about the European Court of Human Rights case of Barbulescu v Romania.
The case relates the right to privacy at work, and specifically, whether an employer was entitled to access emails sent on an employee’s personal email account. In this case, the employer had a rule in which all personal use of the employer’s IT systems was ‘forbidden’. Here the employee had used his personal email account to communicate with his girlfriend and brother during work time and via the employer’s systems. The employer discovered this and, following reading the private emails, invited the employee to a disciplinary hearing alleging that he had breached their policy. In response to the allegations, the employee claimed that his use had been professional only, in other words, he had not used the system for private use. This was rejected by his employer who then explained that it had read the emails and knew that wasn’t true.
The employee brought a claim stating that the dismissal was unfair. The main thrust of his argument was that his employer had breached his human rights – specifically his right to respect for his private life. In summary, the court found that this was not the case and his claim failed.
Following this case, can employers now trawl through the personal emails of employees freely? In the main, the answer is no. The right to respect for your private life continues. An employer cannot check your personal mobile phone or access private email that you never use for work and never access on work systems. However, if you do use your work computer to access private emails, the answer could well be different. Employees should be wary about accessing private emails at work. The risk of a dismissal remains low unless your personal communications breach any policy you are bound by at work. An employer has to expressly tell you in one policy or another that it will monitor it’s computer and telephone systems if it is going to do that.
You should check that your policies allow you to monitor all your systems and check that your rules for using those systems are clear. If you wish to dismiss an employee, a tribunal will want you to show evidence of the breach but also, and importantly, what rule they are alleged to have breached. If there is no clear evidence of a breach of a policy or contractual requirement, that will make the disciplinary decision more vulnerable to challenge. Employers should first check their systems to see whether monitoring is actually permitted. Overstepping the mark could lead to an employee leaving and claiming constructive dismissal. So employers should tread very carefully and take advice before reading any private emails.
You should follow work policies and heed warnings from your employer in relation to what is considered unacceptable conduct in the workplace. If there is a policy in place that ‘forbids’ you from using systems for personal use, then this is reasonable warning that your employer will review your communications to see if that rule is being complied with. In practice, it’s best to assume that all your communications using work devices may be monitored.