Employers Can Read Employees’ Personal Messages – But Only if they have Warned Them
Employers should warn employees that they might look at their private emails if the circumstances justify it. A social media policy is one way that this warning could be given.
Earlier this year, we reported on the Chamber of the European Court of Human Rights' (ECHR) decision in the Barbulescu -v- Romania case: Employers can read employees' private messages.
In that case, the ECHR Chamber held that an employer's monitoring of an employee's messages on a work related internet site did not amount to a breach of that individual's right to privacy (under Article 8 of the European Convention of Human Rights).
The Grand Chamber of the ECHR has now overturned that case. The ECHR have decided that the employee's monitoring was indeed a breach of the employee's rights to privacy in this case. In the previous decision, the court in question had not properly considered all the relevant factors. In particular:
- there had been no clear notification given in advance to warn the employee that there may be monitoring;
- the employee had been told neither the nature nor the extent of the potential monitoring – nor that the employer might access the content of the messages;
- the employee had a right to respect for his private life and correspondence and the court had not in this case achieved a fair balance between the competing interests of the employer and employee's privacy rights.
Tips - what does this mean in practice?
- Employers should create and implement a social media policy that clearly informs employees that their emails may be monitored.
- If an employer has a reasonable belief that an employee is 'doing something' by email which if done by some other means (e.g. verbally) would result in disciplinary action being taken, then in such circumstances it might be reasonable for the employer to monitor the employee's emails. The belief might arise because the employer has received a tip off that such potentially disciplinary acts are taking place.
- For example, if two employees are allegedly ostracising fellow employee "A" and "A" believes that the two employees are sending potentially discriminatory emails between each other about him, it is arguably reasonable for the employer to monitor the two employees' emails – provided that a social media us in place (but only if one was in place).
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