The monitoring of emails is high profile at the moment owing to a judgment of the European Court of Human Rights (ECHR) against Romania. Romanian law failed adequately to protect an employee who was disciplined for having personal emails on an account he used for work. Unusually, the email account used for work was the employee’s own personal Yahoo account. In English law, the opening by an employer of an employee’s personal email account would be a criminal act. The judgment though is still of interest because it nevertheless assesses the balancing act that should be carried out when monitoring a work email account. It applies to the common situation where an employer needs to open emails to see if, for example, an employee is sending confidential information to a competitor.

Over recent years we have perhaps relied too much on the consent to monitoring that is found in all well drafted employment contracts. What this case emphasises is the importance of carrying out an “impact assessment” before opening emails. Always balance the detriment to an employee in opening their emails against the benefit to the employer. It is well accepted that, despite the email account being a work one, an employee will have personal emails on that account. Of course an unscrupulous employee will hide their illicit activity in emails which seem from their heading to be personal. An employer is able to access these but the impact assessment should first briefly check:

  • whether there are alternative ways of finding the information

  • whether all has been done to minimise the intrusion into the employee’s privacy

  • that any personal information that is found is not abused.

An employer who has consent in the contract and then carries out an impact assessment can have confidence at a UK court or tribunal if that evidence is to be used. A failure to do so could backfire badly. In particular with privacy issues coming under greater scrutiny from next May with the new General Data Protection Regulation, employers will be expected to get things right.