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Employers monitoring employees work internet and email accounts

The recent case of Barbulescu v Romania has received a great deal of media coverage some of it unfortunately giving the impression that employers have the absolute right to monitor employees work related internet and email accounts. This is not the case.

Mr B was employed as an engineer for a heating company. The company asked him to set up a yahoo messenger account to deal with clients’ queries. The company’s internal rules strictly forbade any personal use of its IT equipment. The company accused Mr B of using its account for personal purposes and Mr B denied this. The company then printed off a 45 page transcript of his communications during a week which included messages to his brother and girlfriend of an intimate nature and used this in the disciplinary process which ultimately led to his dismissal.

Mr B complained that his rights under Article 8 of European Convention on Human Rights namely his rights to “respect for his private and family life, his home and his correspondence” had been breached.

The court disagreed. It found that whereas his communications were prima facia covered by Article 8, in that an employee should have a reasonable expectation as to privacy of telephone calls, email and internet usage, the employer was entitled to check that employees are working during working hours and as the monitoring was limited in scope it was proportionate. A fair balance had been struck between the rights of the employer and the employee’s right to privacy.

The decision however does not go as far as to give employers a free rein to monitor employees communication.

Firstly, the case is unusual on its facts. Personal use was strictly forbidden in this case whereas most employers in the UK allow some limited personal use. The situation is therefore less likely to occur here.

In addition there is unfair dismissal case law emphasising the need for employers to have in place clear policies and avoid disproportionate responses. Existing ECtHR case law requires that employees be told their communications may be monitored. UK legislation, including the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 already place limitation on employer’s powers to monitor employee’s private communication.

Finally, changes in how employees use technology blur the position still more. Use of smart phones means that employees are less likely to rely on their employers IT systems and the increasing use of ‘Bring Your Own Device’ policies raises privacy implications as to the scope of employees ‘reasonable expectations of privacy’ when using their own devices for work and personal matters.

Despite the publicity given to this case therefore it is very limited in scope and does little if anything to change the position in the UK.

For additional information on this or other employment matters, please contact Richard Green, Partner on 01905 721630 or via email rgg@parkinsonwright.co.uk

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