A decision in early January from the European Court of Human Rights (ECHR) has brought the issue of an employee’s right to privacy within the workplace back into the spotlight.
The decision found that in accessing an employee’s personal communications with his fiancée which resulted in the employee being dismissed the employer had not breached the employee’s right to confidentiality.
The ECHR case of Barbulescu v Romania – 61496/08 [2016] ECHR 61 involved an employee using a work account for personal communications in breach of the employer’s blanket ban on sending personal messages in the workplace. In accessing the work account, the court found that the employer had acted within its remit and it had not acted unreasonably in trying to establish that the employee was completing his professional tasks.
The court held that it was necessary for the employer to access the account and that the employer had acted in a proportionate manner, especially as no further information stored on the employee’s computer was accessed.
As Britain abides by the European Convention on Human Rights the decision will influence our courts. However, in reality, it does little more than confirm the position they have previously taken. That said, each matter will turn on its own facts and there have been previous findings against employers for breaching an employee’s right to privacy by accessing emails and employers who do so also run the risk of successful unfair dismissal claims against them.
There is no doubt that the issue of private life versus the right to monitor is a tricky one that often gives rise to disputes between employees and employers. The difficultly arises due to the fact that there are laws in place to protect both parties.
On one hand, you have the employer who wants to ensure its employees are fulfilling their duties and not spending working time on personal activities. Whereas on the other, especially in light of increasing working hours, you have the employee who wants to maintain a right to, and respect of, a private life both inside and outside of the workplace environment.
An employer is within its legal right to monitor an employee’s emails at work (although they must inform their employees of their intention to do so). They should, however, wherever possible limit their access to business-related emails and should take all reasonable measures to avoid opening personal emails.
On the flip side, an employee is entitled to expect respect for their private/family life to be observed. Given a full-time employee is likely to work 9 to 5 Monday to Friday this could be interpreted as the employee having a right to personal communications/correspondence in working time.
The two positions appear to be at loggerheads and, as such, how they are implemented at ground level requires clarity, communication and common sense.
Key points for employers
Employers should ensure they have comprehensive policies in place. These policies should make it clear what employees are permitted to do during the working day and what type of use is permitted on the employer’s devices.
Whilst in the ECHR case above the employer took the stance that no personal internet/email use was permitted, a stance which is entirely legal, employers may be better served in permitting limited use provided it does not interfere with work.
Permitting personal internet/email usage during designated breaks and having polices on the type of sites an employee can access will help boost employee morale whilst also ensuring employees know the limits of the permission granted.
Any policy that an employer does put in place needs to be properly communicated to employees with the content fully explained so that they are clearly aware that they will be monitored and how such monitoring will take place. Covert monitoring will be difficult for employers to justify.
Employers would be advised to have employees confirm in writing they have had read and understand the policies as this will enable the employer to rely on them should this be required for disciplinary purposes.
Key points for employees
Employees in turn should ensure they comply with the policies in place and be aware that failure to do so can result in a fair and reasonable dismissal. They may also be advised to use personal email accounts rather than work accounts so as ensuring their privacy is maintained when their employer legitimately monitors their work systems.
Should employees be permitted to use work email accounts for personal use they can protect themselves by marking personal correspondence “private and personal” thus making it difficult for an employer to justify viewing such communications, as any monitoring of such emails would seemingly be outside of business purposes.
