Monitoring Employees' Communications

The long running case of Barbulescu was back in the news last week. The European Court of Human Rights has ruled that the Claimant's Article 8 right to privacy was breached when his employers investigated his private messages. This is notwithstanding the fact that the employer's policies clearly set out that personal use of its computer systems was prohibited.

This case is a reminder to employers that if they intend to monitor an employee's emails and communications, except in exceptional circumstances, they should inform the employee that their communications may be monitored.

Firstly, employers need to establish that they have a legitimate reason for monitoring employees' communications - ensuring compliance with the law and their obligations is likely to suffice. Secondly, they must warn employees in advance that their communications may be monitored and the reasons for doing so.

Employers should consider reviewing and updating their IT and communications policies to ensure that they are fit for purpose.

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