Is the employer now the ‘authorised’ Big Brother of the workplace? Is there such a thing as an employee’s right to privacy at work or is this a dichotomy?

On the 5th September 2017, 17 judges of the European Court of Justice determined the following question – To what extent can an employer monitor emails sent by an employee from the workplace? Fresh out of their brilliant minds, by a majority of 11 to 6, the judges decided that Mr. Bărbulescu’s right to privacy had been violated when his employer checked up on chat logs from his professional Yahoo Messenger account that included personal and private communications. The Court took the view that an employer could not reduce the private social life in the workplace to zero. Accordingly, respect for private life and for the privacy of correspondence continued to exist, even if these could be restricted in so far as necessary.

The outcome in this appeal has been coined as a “surprise decision”. Lawyers around the globe are likely to decipher the implications brought about by this surprise as the ease of modern communications continues to blur the boundaries between work and leisure.

Admittedly, the employee’s right to privacy at work is still causing problems, more in terms of acceptance of how it should work than from ignorance. On the one hand, employers may have good reasons to want to know whether employees are stealing trade secrets or sending out inappropriate emails. On the other hand, an employee’s right to privacy is not annihilated by the mere fact of being at the workplace; a reasonable expectation of privacy lingers.

Consequently, everything boils down to a balancing exercise. Employers will have the right to monitor employee emails and other online activity that happens at work, or even on a company cell phone or corporate network, if they make clear to their employees that workers should have no expectation of privacy. What is acceptable therefore, is for the snooping to be regulated by a set of policies clearly stating the nature of the information which the employers can collect and how they will go about collecting it.

In effect, the policies need to emanate from a properly executed impact assessment review drafted internally and covering the following (non-exhaustive) items: what measures are sought to lessen privacy of employees, why are they so sought, what are the alternatives available. Additionally, there is a need to provide clear reasons as to why the reduction of privacy is the workable solution.

The balance which needs to be struck ought to be a fair one. The employee needs to understand the why and the how of his privacy restriction alongside his own rights on the implementation of the policies. After all, no employee rejoices at the idea of a totalitarian employer monitoring his every move. Nonetheless, employees should bear in mind that, unlike a furtive exchange of views during a cigarette break, an email is virtually impossible to refute. Once the “send” button has been clicked, evidence of the employee’s handy work survives.


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