Employers Must Inform Staff in Advance If Work Email Accounts are Being Monitored

Companies must tell employees in advance if their work email accounts are being monitored, the European Court of Human Rights has ruled in a landmark privacy case.

The court was responding to a long-running appeal brought by a Romanian man against his dismissal after he used a professional Yahoo Messenger account to exchange private messages with his brother, and his fiancée.

The judges found that the Romanian courts had failed to protect Bogdan Barbulescu’s private correspondence because his employer had not given him prior notice it was monitoring his communications.

The Strasbourg-based court cannot create new laws but its judgments set precedents that are used as guidance in Europe’s national courts; being an institution of the Council of Europe and not the European Union, its rulings will still have influence in Britain after Brexit.

Romanian courts had previously ruled against Mr. Barbulescu 6 to 1 – claiming that “It is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.” In contrast, the European court found in an 11 to 6 ruling that Mr. Barbulescu’s privacy rights had been violated, as he had not been informed of his employer’s monitoring in advance. The EU courts have subsequently called for tighter regulations on employer access to employee communications.

Greater justification needed from employers for monitoring of communications

Confederal secretary of the European Trade Union Confederation, Esther Lynch, highlighted how the ruling emphasized that greater justification from employers was now needed in regards to monitoring employee emails.

Ms Lynch said:

“This set of requirements will restrict to an important extent the employers’ possibilities to monitor the workers’ electronic communications. Although it does not generally prohibit such monitoring, it sets high thresholds for its justification. This is a very important step to better protect worker’s privacy.”

Employee communications on company time

Research has found that employees are increasingly using their working hours for their own personal communications. A study undertaken in 2016 by the marketing research company Dice found that British employees send approximately 100 private messages a day during their working hours. In addition, of the 1,000 people surveyed by Dice researchers, 70% of workers in the UK also used WhatsApp, Facebook, and mobile phones to send personal messages while at work.

The Dice study also found that 40% of workers had sent email or text messages about new job opportunities, 31% had used company time for online shopping, and 9% had used their emails to flirt with another colleague.

The research also discovered that younger employees were far more inclined to send personal messages throughout the working day, with 90% of 16 to 24-year-olds spending their working hours sending personal messages to their family and friends.

Mindfully monitoring employee communications

The European Court of Human Rights judgment in the case of Barbulescu v Romania is a reminder to employers that they cannot enjoy unhindered access to employee communications. Employers should ensure that they have clear policies about what is permissible with regard workers’ online activities. These policies should be made plain to staff – who should be reassured that managers will act reasonably. Ideally, employees should express their consent to policies.

Andrew Walls, security and risk analyst at research firm Gartner Inc, notes that employees can feel resentful towards intensive surveillance, which is why it is important to be mindful of ensuring that you are completely transparent about employee monitoring and why you are undertaking it. He said: “You need to have the transparency, that fully informed consent, or you run into morale issues or legal issues.”

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