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Eversheds Case Note: Personal emails at work – have employers more access?

  • Ireland
  • General

15-01-2016

A recent decision of the European Court of Human Rights (the “ECtHR”) in the case of Bărbulescu v Romaniahas ruled that an employer in Romania did not breach the privacy rights of its employee when it monitored personal messages on a Yahoo Messenger account, which was meant for business purposes.

However, this decision does not give employers complete discretion to access personal accounts of employees and it is clear that the issues of proportionality and reasonableness continue to apply.

Background

Mr Bărbulescu (the “Employee”) was employed by a private company (the “Company”) as an engineer in charge of sales from 2004 to August 2007. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries.

In July 2007, he was informed by the Company that it had been monitoring his messenger communications and records showed he had been using the internet for personal use, contrary to the Company’s internal policy. When the Employee denied the allegation, the Company presented him with a 45 page transcript of his messages with his fiancée and his brother. The messages related to personal matters.

The Employee was subsequently dismissed for breaching the Company’s internal regulations, which clearly stated, among other things, that “It is strictly forbidden to disturb order within the company’s premises and especially ... to use computers, photocopiers, telephones, telex and fax machines for personal purposes.”

The Employee challenged his dismissal before the Romanian courts claiming that the decision to dismiss him was void as his employer had violated his rights under the Romanian Constitution by accessing his communications. The Romanian courts at all levels dismissed his claim, as the Employee was fully aware of the Company’s regulations prohibiting personal use of company resources.

The Employee went to the ECtHR and claimed that the State of Romania had failed to preserve his rights under Article 8 of the European Convention on Human Rights i.e. the right to respect for an individual’s private and family life. However, the ECtHR held that the monitoring and use of the personal messages was a proportionate interference in the Employee’s Article 8 rights.

The ECtHR’s decision

In the ECtHR’s view, it is not unreasonable for an employer to want to verify that employees are completing work tasks during work hours. The ECtHR was particularly mindful of the fact that the employer only looked at the communications on the Employee’s Yahoo Messenger and not at any other data or documents stored on his computer. It found that the employer had legitimately accessed the emails, as it was under the impression they related to work business. Therefore, the ECtHR found that the scope of the monitoring was limited and proportionate and a fair balance had been struck between the Employee’s right to respect for his private life and the employer’s interests.

In this case, the employer had also complied with all its legal obligations when carrying out the dismissal.

The impact for Irish employers

It’s clear from the decision that it does not give employers the green light to monitor employees’ personal emails on an ongoing basis. The decision does not change the fundamental position that individuals have a reasonable expectation to privacy, even in the workplace. However, the decision clearly shows that in certain cases, reasonable and proportionate monitoring of employees’ emails may be permitted.

An employer will be in a stronger position to argue that any monitoring is reasonable and proportionate where the employer has a clear policy in place and where employees are aware that using company emails for personal use is not acceptable.

Uncertainty remains      

The facts of this particular case are very specific and only deal with the situation where an employer accesses an employee’s company email account, which was set up for company use. This decision provides that if an employee uses his/her work computer to access private emails, his/her employer may be justified in accessing same.

However, the decision does not go any further than this. For example, an employer is unlikely to be permitted to access an employee’s personal email account that had no connection to work even if it is accessed on the work system. However, the decision does not deal with this scenario.

In terms of proportionality, if an employer found one or two personal emails on the work email of an employee, dismissal may be considered a disproportionate sanction, even if the employee was in breach of the company’s internal policies.

In summary, it is worth remembering the following:

  • Clear social media and acceptable use policies should be in place;
  • A bring your own device policy should be implemented, where employees are permitted to use their own devices for work purposes;
  • Employees should have access to these policies and be provided with training on the contents of same;
  • Before accessing an employee’s personal email, an employer should carefully check that its internal policies allow monitoring of all systems and check that the rules for using those systems are clear; and
  • Any monitoring and subsequent sanction should be reasonable and proportionate i.e. it should not go further than is necessary to protect the employer’s interests.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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