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Monitoring an Employee's Email

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By Patrick Stewart

Reports in the press recently would suggest that, in light of recent European Court of Human Rights decision in the case of Barbulecua v. Romania, employers have the absolute and unfettered rights to monitor and read private emails that have been sent or received by employees on the employer’s IT system.

This is not the case, and Employers should approach such issues with care.

Barbulecua v. Romania

It is worth considering this case itself. Mr Barbulecua was dismissed for his personal use of the company’s email/internet system. When concerns were first raised about this, Mr Barbulecua replied that his use was solely for business purposes in dealing with clients of the employer. The employer doubted this explanation and it was in investigating matters to satisfy itself of what the position truly was, that the employer checked the details of the sender and recipient of the emails. In due course the employee was dismissed and he bought a claim in the court in Romania arising from that dismissal.

At that Court hearing in Romania, the employer sought to introduce evidence of the private emails sent and received by Mr Barbulecua, as justifying the dismissal. Mr Barbulecua objected stating that all such evidence should be wholly disregarded by the Romanian Court as otherwise there would be a breach of his right to privacy. The Romanian Court disagreed with him and considered the emails – but only details of who sent and received the emails and not the content – and took the view that it was entitled to consider this on the question of whether dismissal was lawful.

Mr Barbulecua then referred the matter to the European Court of Human Rights on the basis that the Romanian Court had acted in breach of his right to privacy. The European Court of Human Rights disagreed with this, stating that the Romanian Court was entitled to consider the evidence. It is worth noting that the European Court of Human Rights were particularly persuaded by the fact that the Court had only has sight of the identity of the sender and recipient of the emails, and not the contents. The upshot of the case from the ECHR’s point of view is therefore that while generally the employee has a right of privacy in relation to communications sent and received at work, including emails received on the employer’s IT system, circumstances may allow the employer to access details from that email traffic.

Monitoring in the UK

Monitoring of emails in the UK is covered by the Regulatory and Investigatory Powers Act and Data Protection regulations.

Generally an Employer is allowed to monitor an employees emails if:

  • It is for a legitimate purpose which can include checking that an employee is complying with any rules on use of email, but note there must be some reason to be concerned about such use;
  • It is proportionate just checking for details of the other correspondent to the email without reading the content.
  • The employee should be made aware of the monitoring. Having a policy dealing with such matters can help with this.

So, the employer does not have freedom to randomly check employees’ emails.

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