A recent ruling by the European Court of Human Rights has found in favour of the employer in a case where a Romanian engineer had been sacked for sending his fiancée private emails via his workplace’s mail system.
Bogdan Barbulescu’s employer had transcripts of email messages exchanged with his fiancée that were used as evidence of his gross misconduct, leading to his dismissal. On the surface, this ruling has a potentially serious impact for employees in the UK and it might be read as opening the door to bosses indiscriminately spying on their workers’ communications.
However, Charlotte Gallagher of P3 People Management, gives a more measured assessment. “The outcome is broadly in line with existing English Employment Tribunal decisions in this area,” she points out. “The question is whether the employee has a reasonable expectation of privacy on the company email system”.
It comes down to employers being clear about their policy, and their intent to monitor employee communications to a certain extent in order to enforce it. Guidance comes from three main pieces of UK legislation: The Data Protection Act, the Regulation of Investigatory Powers Act and government telecommunications regulations dealing with lawful business practice and the interception of communications.
“The circumstances under which businesses can monitor or record employee communications without consent include investigating or detecting crime, or the unauthorised use of the system”, explains Charlotte.
Businesses will need to have a thorough impact assessment prior to undertaking monitoring and, crucially, employees must be clearly made aware of the policy being put in place.
The Human Rights Act implements rulings on The European Convention on Human Rights (ECHR) in the UK, but not in the case of private sector employees. ECHR ruling should, however be taken into account to by the court of tribunal in any decision.
“The right balance needs to be struck”, Charlotte concludes. “Workers’ private lives usually extend into the workplace, and employees have an expectation of privacy, even where they have been informed monitoring may take place”.
If you would like to read more of Charlotte Gallagher’s views on this issue, please read our related article, “Should You Monitor Your Employees’ Private Messages?”