European Union: A Recent Decision on Monitoring Employee Emails
Employers monitoring employee email communication is a sensitive and complex issue. There are good reasons for employers to want to monitor emails, such as ensuring trade secrets are not being disclosed, excessive time is not being spent on social activities or employees are not harassing or defaming individuals. However, there needs to be balance with an individual's privacy rights.
The situation in the EU has been clarified after the recent decision of the European Court of Human Rights (ECHR). In the case under review, a Romanian employee was terminated for using an email account for personal purposes when the company policy prohibited personal use. The employer’s monitoring did not include the contents of the messages. The ECHR held that given the employer's monitoring did not include the contents of the messages, it could be deemed reasonable and in accordance with Article 8 of the European Convention. The ECHR also commented that it was not unreasonable for an employer to want to know whether an employee was devoting their time to work related activities or not. In general, employees should have an expectation that personal correspondence on phones and email should not be monitored by employers, unless the employer has a clear policy prohibiting the use of company equipment for personal use.
The case confirms that monitoring must be supported by clear rules that restrict personal use, and employers are recommended to check company policies for firm and clear wording. Otherwise, monitoring and a termination that follows may both be held unlawful.