Investigations and the Right to Privacy

Screen Shot 2016-04-27 at 17.53.12

Is it a breach of human rights to monitor emails?

Article 8 of the European Convention on Human Rights protects employees’ right to privacy; this extends to the sanctity of private correspondence. Which makes sense of course: no reasonable employer would expect to have access to credit card statements, final demands and love letters!

However, things are less clear – much less clear – when the employee uses work email to send and receive personal emails. The nutshell answer is that employees’ private emails, even those sent from a work email account, are covered by Article 8 if:

  • the employee has a reasonable expectation of privacy
  • the emails do not impact on work related matters
  • the emails are not addressed to colleagues’ work email addresses

So, what to do? We advise that you should have a written policy that explains your approach to email and internet usage and which makes it clear that employees cannot expect emails sent using work systems to be kept private.

You could indicate that monitoring of emails will, where possible, avoid access to those whose subject line contains something like: ‘Private & Personal Email Not Relevant to Business Functions’. This will discourage the practice except in real emergencies, and make it very obvious when email systems are being abused.

Can employers read private emails?

Employees frequently use work email systems for private emails. Occasionally these emails may be relevant to disciplinary or other processes.

Can the employer lawfully read private emails or use them in any formal process?

The Human Rights Act protects employees’ rights to private life and this includes personal emails even if they are sent or received on the employer’s systems. This affects lawfulness in different ways and could mean that emails that are relied upon turn out to be inadmissible.

So what can an employer do to make sure they are entitled to access and use these emails?

An employee can only rely on the right to private life if they have an expectation that emails will be private.

So the employer must adopt an email, internet and electronic communication policy that makes it clear that there can be no expectation of privacy.