The case relates to the right to privacy at work, and whether an employer is entitled to access emails sent on an employee’s personal email account. The employer had rules prohibiting all personal use of their IT systems. Mr Barbulescu had used his personal email account to communicate with his girlfriend and brother during work time and via the employer’s systems. The employer discovered this and, following reading the private emails, invited the employee to a disciplinary hearing. Subsequently, they terminated his employment. The European Court of Human Rights, by 6 votes to 1, dismissed Mr Barbulescu’s appeal. The court judged that his employer’s monitoring had been limited and proportionate.
Employers need to recognise that the judgment does not provide them with a ‘Carte Blanche’ right to undertake workplace monitoring. Employers are advised to check that their policies allow them to monitor all IT systems and check that rules for using those IT systems are very clear. An employment tribunal will not only want the employer to show evidence of any breach but also, and importantly, what rule the employee is alleged to have breached. If there is no clear evidence of a breach of a policy or contractual requirement, any disciplinary decision will be more open to and vulnerable to challenge. Employers should take advice before reading any employee private emails.