A recent ruling by the European Court of Human Rights sheds some new light on whether it really is acceptable for bosses to play big brother and monitor the use of workers’ private email.

Privacy and technology

Ok so it’s 2017 and this is the world of the smart phone. Let’s face it we have plenty of time to catch up with our personal correspondence on the way to work, at lunchtime or at home. The ‘scroll’ habit in which our right or left thumb depending upon your predisposition to right or left handedness is far stronger and more dexterous than in previous generations. We seem glued to our smart phones and ever more obsessed with a modern-day communication in which we are expected and expect others to be attached to their devices and offering immediate responses. So, in some ways it is odd that employers can have a tough time at all policing the use of personal emails on a PC because most workers now have their phones ‘always on’ and accessible 24 hours.

The Mr Barbulescu case

Speaking to People Management, Beverley Sunderland, Managing Director of Crossland Employment Solicitors reports on a case in which a Mr Barbulescu’s employers believed he had been sending personal emails. The employer had a policy stating that work equipment could not be used for anything personal. Acting upon this suspicion they looked at his Yahoo Messenger account and discovered he had. A dismissal then followed.

Continuing, Sunderland states: “The employer said it had warned Mr Barbulescu in advance that his emails would be monitored. He denied this. Despite this, the European Court of Human Rights (ECHR) concluded that his privacy rights under Article 8 had not been infringed. The judges said that as there were internal rules forbidding the use of work equipment, he could not have a reasonable expectation of privacy, and “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”. Monitoring was found to be limited and proportionate as they only looked at the emails and not anything else.”

Naturally, Barbulescu appealed to the Grand Chamber, which resulted in ECHR’s decision being overturned because it found that while privacy rights could be reduced by employers, it could not be reduced to zero and a balancing act had to be struck.

Key to the case is that Barbulescu had not been warned before the monitoring took place or that the content of emails would be looked at.

Sunderland said: “The national courts, the Grand Chamber said, had failed to consider the seriousness of the consequences of the monitoring, namely his immediate dismissal, and had failed to come to a decision as to when the emails had been accessed – was this before or after they had called him to a meeting to ask him if he had used company resources? “

It’s a fascinating case that asks the important question of why employers should be monitoring workers’ emails in the first place? From a personal point of view, I also believe that employers should be taking a more holistic approach towards their workers.

A quick peek doesn’t hurt

If a worker needs to or finds it takes the pressure off to take a quick peek at their gmail or yahoo mails then does this really impact upon their productivity and is there any actual quantifiable evidence to suggest it has a negative influence on output? For many employees, being able to juggle both their personal and work lives is important to their wellbeing. Email is a valuable form of communication and whilst we wouldn’t advise that employees should be constantly surfing their mail it is also a nonsense to suggest that they can just park their personal lives at the door when they come to work. Of course, there is the question of professionalism but for most of us mere mortals, checking in on our holiday booking, car insurance details or social emails is a necessary part of life. If that means we can cope in this ever-busy life then perhaps employers should look at the bigger picture and accept that treating employees as respectful adults goes both ways, if we respect and trust them to do the job, does it really matter if on occasion they take 5 minutes out to check up on their personal lives?

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Author: Annie Hayes