Employers can read employee’s private emails says European Court

The European Court of Human Rights has recently ruled that an employer’s monitoring of private messages sent by an employee through a work-related Yahoo message account, was lawful and could be relied on in dismissing that employee.

These emails, including personal messages sent to the employee’s friends and family, were printed by the employer and used during disciplinary proceedings as well as in the employee’s subsequent court cases. The Romanian courts upheld the employee’s dismissal. It also held that the monitoring and use of the personal messages was a proportionate interference in his article 8 rights (the employee’s right to respect for his private and family life, his home and his correspondence).

While this decision may create the impression that employers now have the unimpeded right to snoop on employees’ personal emails, it does not overrule previous decisions which affirm employees’ reasonable expectation of privacy. Nor does it override existing UK legislation (including the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000) which place important limitations on employers’ power to monitor their employees’ private communications.

Employers will often have valid reasons to monitor employees’ use of email, internet and social networking, including performance issues, damage to reputation, loss of business and various legal liabilities. As a matter of good practice, employers should ensure they:

  • Consider whether their decision to monitor personal correspondence is proportionate in each case. This require the employer to establish whether its reason for carrying out the monitoring is sufficient to justify an intrusion into an employee’s private life, and whether the means of monitoring chosen are proportionate to meet that need; and
  • Have in place appropriate policies which explain the circumstances in which monitoring may take place; the nature of the monitoring and how information obtained through monitoring may be used.