Every week there are case reports that are really interesting as they give us another way to consider a particular point of the law. This case is helpful to employers as it shows us that they should have clear rules setting out their entitlement to check all e-mails on the employers email system. Employers should also make sure that the details contained within private communications are not more widely published or distributed during disciplinary proceedings, and of course that the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 are complied with (which is probably something to take advice upon).
The case was heard in the European Court of Human Rights, and is known as the case of Barbulescu v Romania. The ECHR held that employees will not generally have a right to privacy in relation to personal communications that they send whilst at work although they also gave the usual guidance that all cases will turn on their particular facts. Nothing is ever absolutely straight forward!
Mr Barbulescu was an employee who sent personal e-mails via his work e-mail account to his brother and his fiancée in breach of his contract of employment. The messages, which contained details about his sex life and health, were accidentally discovered. Mr Barbulescu was dismissed following a disciplinary process.
He ultimately appealed to the ECHR who held that his Article 8 rights (to respect for his private life and correspondence) were engaged. However, the intrusion into his private life was justified and proportionate in the circumstances. There was a need for the employer to check to see whether employees were engaged in carrying out professional tasks during working time, therefore there was no breach of his human rights.
So, if you are an employer and your contract of employment or staff handbook doesn’t have a policy on the use of emails and the internet during work time, I would definitely recommend adding that. It potentially protects the employer by setting out clear rules for employees to follow and protects the company from being taken all the way through a very costly set of proceedings such as in this case. Get in touch with us now if you would like help with employment contracts.
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