Re: Spring 2016 | Page 94

A clear path for monitoring emails? A recent case in the European Court of Human Rights (ECHR) has got employers and employees wondering about how far an employer can go when looking to monitor the emails of employees. The case, Barbulescu v Romania, as the name suggests, originated in Romania so the first thing that we must recognise is that some of the detail may not necessarily be applied in the UK. However, the facts as disclosed in the case are important. Mr Barbulescu used a business Yahoo Messenger account to communicate with his fiancée and his brother about personal matters, including details about his sex life and health. The employer monitored the account and called Mr Barbulescu to task because it was forbidden to use its systems for personal use. Initially, Mr Barbulescu said he had only used the account for professional purposes but was then presented with a 45 page transcript of his personal messages. The employer dismissed Mr Barbulescu and he accused them of violating the Romanian Criminal 94 Code in respect of the alleged violations concerning his personal correspondence. The ECHR was asked to determine if Mr Barbulescu’s rights under Article 8 of the European Convention of Human Rights had been breached. Article 8 provides for a right to respect for private and family life, the home and correspondence. The ECHR found that these rights had not been violated and it was not unreasonable for the employer to seek to check on Mr Barbulescu’s work and make sure that he was doing what he was being paid to do. The Yahoo Messenger account was meant for work purposes only and the employer had no warning that it would be looking at personal material when looking at the account. This case shows that it must be recognised that employers are able to verify that employees are completing professional tasks during work hours. It is not wholesale permission to look at all data. If personal use of systems is allowed, then the employer will have to careful about looking at the content of emails when they are marked as such. However, the employer will want personal usage to be personal and such it can look at the number of emails etc without a problem. The learning point is for employees. Why oh why would you want to discuss intimate details of your personal life on a work system which is meant only for professional use? By Martin Williams