Comment: Maintaining staff and employers’ rights is a difficult balance

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RESPECTING privacy is a difficult one, says Andrew Brown

No-one wants to get caught for doing something wrong. But is there a human right to not get caught? What about the right to privacy?

Many employees who get caught red-handed will still instruct a lawyer and argue their human rights have been breached. Examples range from individuals who have been caught spending too much time on cigarette breaks to those caught stealing from their employers. How can an employer ensure they are not being defrauded without, at the same time, breaching the employees’ right to privacy? In what circumstances should an employee expect that, for example, their private emails might be read?

Recent newspaper stories such as “Britain has a new human right, granted to us by the judges of the European Court of Human Rights in Strasbourg… British bosses have just been given the freedom to spy on their employees’ emails” might have led employers to think they can now ‘spy’ on the emails which their employees send from a work address.

Most employees would be horrified at the thought of their employer being able to monitor their every move.

However, this tabloid summary of the recent European Court of Justice decision (Barbulescu v Romania 2016) is entirely inaccurate.

Article 8(1) of the European Convention on Human Rights states: “Everyone has a right to respect for his private and family life, his home and his correspondence”. Few would argue such a right was inappropriate. However, it is often effectively pled as a right to “not get caught”.

In the Barbelescu case, there was no right to “not get caught”. The furore surrounding the case appears to ignore some crucial factors in the court’s decision:

n The messaging account in question was set up for professional purposes.

n The employer had a clear policy prohibiting personal use.

n The employee told his employer that all messages on the account were work related.

Employers do have a limited right to monitor employees’ behaviour. This can extend to hiring private investigators where an individual is suspected of fraudulently claiming sick pay or of stealing, for example. More commonly however, employers’ monitoring of employees relates to their internet and email usage. However, even where an employee is on work time and using work equipment, the monitoring must be justified. In Copland v United Kingdom there was a human rights breach where there was no IT policy in place and the employee was not told they might be monitored.

Rather than endorse “snooping”, through various cases the court has confirmed that, in the absence of a warning to the contrary, employees have a reasonable expectation of privacy in relation to telephone calls, emails and internet use – even where conducted in their employer’s time.

However, the court considers that it may not be unreasonable for an employer to verify that working hours are spent working. The employer in the Barbelescu case had only looked at a particular business account and, after having been assured by the employee that the account had not been used for personal purposes.

If an employer has reasonable grounds for a suspicion that the employee is committing misconduct, has previously warned employees that monitoring may take place and does not delve any deeper than necessary, it is likely to successfully defend allegations of a breach of human rights.

Employees also have certain protections. Any notion that an employer has a right to snoop at will is misguided. It is to be hoped, for the sake of employers and employees, that employers have not been misled by the misreporting of the Barbelescu case. That said, employees who are caught should not assume the right to a private life is a panacea.

• Andrew Brown is a Partner in the Employment Unit of Anderson Strathern