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Monitoring staff communications – the do’s and don’ts.

A widely reported European Court of Human Rights case (binding on the UK) may have given employers the (wrong) impression that they can snoop at will into employee emails. When employee Barbulesco sent personal messages about his sex life to his fiancée he was surprised to see that his employer was also reading these and regarded this as an infringement of his human rights. The Court disagreed and upheld the employer’s view, but there are some important learning points from this case.

Making a sensible decision in this case the ECHR acknowledged that Barbulesco had a right to respect for his private life and correspondence (Article 8 of the Convention on Human Rights) but confirmed that the employer also has a right to ensure that systems provided for work purposes were actually used for work and not for personal exchanges in work time. In this case his employer had clear rules stipulating that their systems must not be used for personal purposes, and having accidentally stumbled on a personal email, it asked Barbulesco for an explanation.

When Barbulesco denied personal usage, the employer launched an investigation and identified a series of private communications to and from his work Yahoo account, many of which had been sent during time he should have been working. He was dismissed, and his subsequent escalation of his unfair dismissal claim through the European courts has established some useful summary points:

  • It is permitted to "monitor emails to detect unauthorised use" or breaches of policy, but staff MUST be told that this will happen (including that personal emails may be read) and simply having an email and internet policy gathering dust on a shelf is not enough – the policy should be clearly and regularly communicated and well understood (which was the case for Mr Barbulesco.)
  • The employer’s rules should make it clear that personal use of Company systems is not permitted, or if it is, when it is permitted (e.g. during authorised breaks.)
  • If an apparent infringement has occurred it is permissible to seek out personal emails to establish, as a part of an investigation, whether a breach of rules has occurred.
  • The normal rules of the disciplinary procedure (which will stipulate an investigation, hearing and appeal) should also be followed.

In the absence of effective and understood policies and rules an employer may not access employee emails etc. without the permission of the employee and to do so would probably result in a successful unfair dismissal claim. NB, while this case concerned the monitoring of emails, the same conclusions would apply to the use of video surveillance, mobile & office phone use etc.

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