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Can an employer monitor content of employee personal messages?

View profile for Gillian Markland
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Can an employer monitor content of employee personal messages?

Can an employer monitor the content of an employee’s personal messages sent from a work email account? Probably not.

A recent decision of the European Court of Human Rights (ECHR) in the case of Barbulescu v Romania has overturned an earlier decision it made in 2016. That decision stated that an employer can monitor personal messages which an employee had sent on a work-related Yahoo Messenger account.

Briefly, the background to the case was that Mr Barbulescu was dismissed by his employer on the grounds that he had breached the company’s IT policy. The policy strictly prohibited any personal use of its IT equipment and Mr Barbulescu confirmed that he knew this. His employer alleged that he had breached their policy by sending messages regarding his sex life and his health to his brother and fiancée. Mr Barbulescu denied this. As part of the company’s investigation they produced a transcript of all his Messenger communications which included the text messages in question. He was dismissed as a result.

Mr Barbulescu brought a claim arguing that his employer had breached his right to private life and communications under Article 8 of the European Convention on Human Rights. The Judges found in favour of the employer and held that the monitoring of Mr Barbulescu’s text messages as part of the disciplinary proceedings was reasonable and lawful. Mr Barbulescu appealed to the Grand Chamber of the ECHR.

The Grand Chamber has recently overturned the previous ECHR decision and found that Mr Barbulescu had had his right to privacy breached and his employer was wrong to dismiss him. The key point in their judgment was that although there was an IT policy in place which the employee knew about, the employer had not informed employees that the content of their personal communications on work IT equipment could be monitored at any time.

Employers should consider reviewing their IT and Communications policy in view of the above decision. When deciding whether to monitor an employee’s emails we would advise employers to seek legal advice to ensure that the monitoring is appropriate in the circumstances.

Should you require any assistance or advice in relation to this, please do not hesitate to contact the Employment Team at Harrowells.