How far can you go to monitor an employee’s emails?

19 September 2017

Many employers will monitor the way their employees use email and the internet, partly to ensure that employees are not distracted during their working hours and, more importantly, to ensure that employees are not abusing the IT systems to damage their business – for example, sharing confidential information via email.

However, the recent case of Barbulescu v Romania reminds us that employers must balance this legitimate business interest against an employee’s right to respect for their private and family life. In this case, Mr Barbulesca was employed as a sales engineer by a heating company. He used a Yahoo Messenger account to respond to customer enquiries. In July 2007, his employer informed him that it had been monitoring his account and that they had found evidence that he had been using the account to communicate with his fiancée and brother about personal matters, in breach of company policy. Mr Barbulesca was dismissed.

Mr Barbulesca objected to his dismissal and the case ended up in the Grand Chamber of the European Court of Human Rights, which was asked to consider whether the employer’s conduct was a breach of Article 8 of the European Convention of Human Rights, the right to respect for private and family life.

In considering Mr Barbulesca’s complaint, the Grand Chamber acknowledged that the employer had a legitimate interest in ensuring the smooth running of the business, and it had done so by monitoring its IT systems to check that its employees were performing their professional duties adequately and with the necessary diligence. However, the employer had not informed Mr Barbulesca in advance of the extent and nature of its monitoring activities, or of the possibility that it might have access to the actual content of his messages.

The Grand Chamber concluded that the domestic courts in Romania had not carried out the necessary balancing exercise, in accordance with the requirements of Article 8, between Mr Barbulesca’s right to respect for his private life and correspondence and the employer’s interests. The Grand Chamber also concluded that the domestic courts had failed to carry out a sufficient assessment of whether there were legitimate reasons to justify the employer’s conduct in monitoring Mr Barbulesca’s communications, or whether the aim pursued by the employer could have been achieved by less intrusive methods than accessing the actual contents of Mr Barbulesca’s communications.

The Grand Chamber therefore upheld Mr Barbulesca’s complaint and awarded him compensation.

This case is a useful reminder that employers must be transparent when it comes to monitoring their employees’ email accounts and internet use. If you are going to monitor your IT systems in this way, make sure you tell your employees what you are doing, and why, in an IT Policy or Data Protection Policy.

By Michelle Tudor

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