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Thursday
Jan282016

Can employers read employees’ private correspondence?

Earlier this month the media reported that a decision of the European Court of Human Rights has given employers the green light to snoop on employees’ personal emails. 

The case was brought by a Mr Barbulescu, a heating engineer who had been asked by his employer to set up a Yahoo Messenger account to deal with customer enquiries.  He was instructed not to use the account for personal correspondence and that his employer might monitor messages.  Mr Barbulescu used the account to send intimate messages to his fiancée. He was dismissed for unauthorised use of the internet.  Having unsuccessfully challenged his dismissal in the Romanian Courts he took the Romanian Government to the European Court, arguing that it had failed to protect his right, under Article 8 of the European Convention on Human Rights, to be able to correspond in private without “big brother watching you”. 

Whilst the Court dismissed Mr Barbulescu’s case, it definitely did not give employers carte blanche to read employees’ private correspondence.  Instead it decided that if employees have a “reasonable expectation” that correspondence is private, the employer should not read it. Even if there is no such expectation, employers should only read private correspondence if there is good reason to do so. 

So where does this leave us?  Barbulescu’s employer had instructed employees that Yahoo Messenger accounts were to be used only for business purposes.  It warned employees that it would monitor messages. Both points were critical to the success of its defence. 

The Barbulescu case reflects my own experience in local Employment Tribunals.  Last year I advised a client who had looked at its employees’ Yahoo Messenger accounts following a third party report that its employees were leaking confidential information.  In doing so it discovered that one of its senior employees had sent messages to colleagues in an apparent effort to undermine his employer.  He and others had exchanged inappropriate sexual comments about female colleagues.  It was clear that Yahoo Messenger was meant to be used for work.  I advised that the suggestion of a leak gave my client good reason to look at employees’ messages.  I advised that the offensive messages gave good grounds to dismiss for gross misconduct.  The employees were dismissed.  One of them claimed unfair dismissal, in particular that the messages were private “banter” and not any concern of the employer. The Tribunal gave very short shrift to his arguments, dismissing his case and ordering both him and his lawyer to pay our legal costs.  

The Barbulescu case implies that employers who give the right instructions and warnings can lawfully monitor messages and can discipline employees, both for breaching instructions and for what they say in correspondence.  The case also implies that employers that do not give such clear instructions and warnings may not be able to monitor or discipline.  Whilst disputes are not always that simple, our advice is very simple; give instructions and warnings to your employees, in writing, now.  We can help with the wording and with the process to implement it.  In doing so you are not saying that you want to snoop; these days most employees have smart phones, if they must correspond in private during working hours they can use their phones, not the employer’s internet. What you are doing is ensuring that if you do discover something that makes you want to end an employment relationship, you can. 

For further advice on the above or other Employment issues please contact Chris Thomson, Senior Partner at Greene & Greene (christhomson@greene-greene.com / telephone 01284 717412).  For more information on Greene & Greene please view www.greene-greene.com and follow @greenegreenelaw.

 

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