Reading employee email Bărbulescu v Romania

15 January 2016: Reading Staff Email. A snoopers charter?

Under the Regulation of Investigatory Powers Act 2000 (RIPA), employers can lawfully monitor staff email if the employer has reasonable grounds to believe that both the sender and the recipient have consented to interception.

Under RIPA, employers can monitor without consent to:

1. Ascertain compliance with the regulatory or self-regulatory practices or procedures relevant to the business.
2. Ascertain or demonstrate standards which are or ought to be achieved by persons using the system.
3. Prevent or detect crime.
4. Investigate or detect the unauthorised use of the telecommunications system.
5. Ensure the effective operation of the system.

What about personal email accounts? What about and Article 8 of the Human Rights Act 1998, that:

‘everyone has the right to respect for his private and family life, his home and his correspondence’

As reported in the press this week, the European Court of Human Rights has held that monitoring of personal messages on a work-related internet messaging account (in this case a Yahoo messaging account) did not breach the right to privacy.

An employee had been dismissed for personal internet use at work, contrary to the employer’s internal rules. As part of its investigation a Romanian employer accessed private messages sent by the employee to friends and family relating to personal matters. These messages were printed by the employer and used in the disciplinary proceedings.

The European Court of Human Rights in Bărbulescu v Romania – (61496/08 [2016] ECHR 61.) held that doing so was a proportionate interference in the employee’s article 8 rights in those circumstances. It was reasonable to check whether staff were completing their professional tasks during working hours. The employer accessed the account in the belief that it contained client-related communications only.

Employers would be wise to ensure that carefully worded Email and IT policies deal with the circumstances in which work or personal email on work systems can be accessed, and to ensure it is brought to the express attention of all staff. If the employer wants to access a personal yahoo, hotmail, or other personal email account of a member of staff, it would be sensible to take legal advice first. The case is not the ‘snoopers charter’ that some parts of the press have portrayed.

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