LIFE BITE: How Private are your Private Emails in the Workplace?

apple-150579_1280Have you ever wondered whether your boss is legally permitted to read personal emails that you have sent to friends and family from your work email account?

Well, in light of a recent Court judgment it seems that they are.

In  the judgment of the case of Barbulescu v Romania which was handed down on 12th January 2016 by the The European Court of Human Rights, the Court held that there is no violation of your right to respect for private life and correspondence if your employer monitors personal emails that you send whilst at work .

What is expected of an employee and an employer is usually set out in the contract of employment.  However,  a contract does not have to be in writing and terms can be established in a manner of ways, either expressly, impliedly or through custom and practice.

It should not be that surprising that an implied term of a contract of employment is that when an employee is at work,  they should devote all of their time and attention to their work, not privately messaging friends or loved ones or using the internet for their own personal matters. Many employers have specific email and internet policies in place to counter such misuse.

In this particular case,  Mr Barbulescu was an engineer who used a Yahoo Messenger account, specifically set up for business purposes, to send and receive personal messages with his fiancée and his brother.  His employer, discovering this accidentally, dismissed him considering it to be in breach of his employment contract

Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal correspondence on the grounds it infringed his Article 8 right that is the right to respect for private life and correspondence.   Mr Carbulescu’s employer’s internal regulations strictly prohibited employees from using the company’s computers and resources for personal purposes however, it was disputed whether the Mr Barbulescu had been given prior notice that his communications could have been monitored and their content accessed and eventually disclosed.

The issue before the ECJ was whether the right to respect for private life and correspondence is breached if employers monitor employees’ personal communications at work? The answer was a resounding no, subject to reasonableness/proportionality.

The ECJ held that although Article 8 was engaged,  the Romanian courts were entitled to look at that evidence in deciding whether Mr Barbulescu’s dismissal was fair.  The European Court was persuaded by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only that they were personal messages.   Also, only the Yahoo Messenger account, which the parties agreed was set up for business purposes was accessed by his employer – not other documents and data stored on Mr Barbulescu’s computer.

The Court therefore found “that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.”

MGavinThis Life Bite was provided by Mary Gavin, Associate Solicitor in the Employment Law Department  of Francis Hanna & Co Solicitors.  If you would like further informaiotn on this area of law, please contact Mary Gavin on mgavin@fhanna.co.uk or contact us at Life Law NI here.

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