07 Sep 2017

Employer monitoring of private messages may be a breach of human rights

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In a decision handed down on 5 September, the Grand Chamber of the European Court of Human Rights has held that, in monitoring an employee's personal e-mails, his employer had breached his right to respect for private life and correspondence under Article 8 of the European Convention on Human Rights.

We reported on the judgment of the first instance European Court of Human Rights in this case and summarised the facts in our e-alert in January 2016. In that judgment, it was held that Article 8 was engaged but that there had been no violation. Mr Barbelescu appealed that decision and the Grand Chamber has now overturned it.

The key point for employers is that the judgment does not mean that it will never be reasonable to monitor employees' personal electronic communications – it simply places significant emphasis on the information provided to employees about the extent of such monitoring and the safeguards put in place to avoid abuse.

While the outcome is different, the message for employers is very similar – it is vital to have in place an effective employee monitoring policy which:

(a) is accessible and comprehensible for all employees;

(b) includes clear guidance on the circumstances in which employees may or may not use work e-mail and internet sites for private communications; and

(c) includes information on the level of monitoring carried out and the use made by the employer of the information concerned.

UK judges are not bound by decisions of the Grand Chamber, but they can be and are taken into account by domestic courts (and this position will be unaffected by Brexit, since the UK's status as a signatory to the Convention is separate from its membership of the EU).

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