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Is there a right to privacy at work?

Posted: 2nd March 2016   In: Business Employment, Individual Employment

The recent case of Barbulescu v Romania hit the national press with headlines suggesting that the law had changed and that employers could do whatever they wanted in relation to the interception and monitoring of employees’ emails. These headlines were not correct. The law in this area has not changed but some clarification has been provided.

Mr Barbulescu worked for a company in Romania was instructed by his employer to set up a Yahoo email account for business purposes only. The company's rules made it clear that employees were not allowed to use its equipment including computers and servers for personal use. His employer monitored the use of the account and dismissed Mr Barbulescu for contravening their internal policy as a result of using the account to send and receive personal emails and messages.

Mr Barbulescu argued that the monitoring of his emails infringed his rights to private life which is enshrined in Article 8 of the European Convention on Human Rights and is incorporated into UK law by the Human Rights Act 1998.

Mr Barbulescu challenged the decision to dismiss him through the Romanian courts and when unsuccessful took his case to the European Court of Human Rights.

In its judgement the European Court of Human Rights confirmed that a balance needed to be made between the employee's right to respect of his private life and the employer's interests and found that in this case there had been no breach of Mr Barbulescu’s Article 8 rights. The Court went on to say "it is not unreasonable for an employer to want to verify that its employees are completing their professional tasks during working hours". In the Barbulescu case the employer had a clear policy and employees had been told that they may be monitored.

The case does not change the fundamental law in this area. It is clear that monitoring of employees IT use and systems of work can be lawful and the Barbulescu case has not changed this. However what the case has made clear is that when considering monitoring employees’ emails and the employer must have regard to the employee’s private life and their Article 8 right. This indicates that any monitoring that does take place should be proportionate and a clear policy dealing with the monitoring of emails should be provided to all staff. When looking at monitoring employers also need to comply with the Data Protection Act and the Employment Practices Code which sits alongside it, this requires a risk assessment to be carried out before any monitoring takes place.

The Barbulescu case should not be seen as giving employers are free rein to monitor employees’ personal emails or messages. The case requires the employer to balance its legitimate business interests against the employee’s right to privacy. This is by no means straightforward.

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This article first appeared in the Hemel Gazette Business Monthly on Wednesday 24th February 2016.