The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
In the case of Barbulescu v Romania, the employer had a clear policy in which all personal use of the employer’s IT systems was forbidden. Here, the employee had used his personal email account during work time and via the employer’s systems. Upon discovery, the employer was invited to a disciplinary hearing alleging a breach of the policy and was dismissed. The employee claimed that his use had been professional only and he had not used the system for private use. In bringing a claim for unfair dismissal, he argued that his employer had breached his human rights, specifically his right to the respect for private life, in accessing his emails whilst at work.
Whilst the case is unlikely to be a green light for employers to trawl through personal emails freely, it confirms the position that if a robust policy is in place and an employee uses a work computer to access private emails, monitoring can be permitted.
We would encourage employers to check policies, ensure that they allow you to monitor all of your systems and check that your rules for using those systems are clear. If you wish to dismiss an employee for using your work systems, a Tribunal will want you to show evidence of the breach but also, and importantly, that a clear policy was in place.
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For more information or advice about employment law please contact Kate Watkins.
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