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Appeal court ruling limits the rights of employers to monitor private emails


The European Court of Human Rights (ECHR), sitting as the Grand Chamber, has made a judgment on a case, which sets out the circumstances in which an employer can monitor an employee’s private emails sent whilst at work.

The case involved a Romanian worker who had been instructed by his employer to set up a Yahoo Messenger account for work purposes. The company did have a policy in place which prohibited the use of work computers for personal use. The Company monitored the employee’s use of the Yahoo account and subsequently found out that the employee was using the account to send private messages to his fiancé and brother. He was subsequently presented with a transcript of all of his private messages, following which he was dismissed.

Although the ECHR accepted that the Company did have a policy in place which restricted the use of their IT systems for personal use, it determined that all employees have a right to privacy, even at work, and that if an employer wished to monitor any electronic communications, in the workplace, then other than in exceptional circumstances the employee must be informed that their communications may be monitored.

The ECHR criticised the national courts for not having determined if the employee had received prior notice from his employer that it might monitor his communications. Based on the evidence available, the ECHR concluded that the employee had not been warned before the monitoring taking place or that the content of emails would be looked at.

They held that the original court's decision was wrong, and that Romanian law failed to strike a fair balance between the employer's and the employee's interests.  Accordingly there was a breach of Article 8 and the employee was entitled to compensation.

This was a complex and narrowly defined judgement which focused on the failure of the employer to have a policy in place to inform employees that any electronic communications may be monitored.

This case, as with many others, emphasises the importance of having appropriate policies and procedures in place, if you wish to control and regulate how your employees behave and conduct themselves at work and particularly where you wish to take any form of disciplinary action.

Joe Janda

HR Services Director