Monitoring employees’ emails
The case involving a 38-year old engineer from Bucharest continues: the dispute between a Romanian employee who despite a ban used his employer’s equipment for private purposes during his working hours and a private company that monitored his communication has taken an opposite turn. In January 2016, the chamber of the seven judges of the European Court for Human Rights (ECHR) sided with the employer, concluding that monitoring the employee had been justified and reasonable under the circumstances. In September 2017, however, the grand chamber of the court quashed the judgment. What effect will this have on Czech employers and employees?
In 2007, a private Romanian company fired its employee who was supposed to communicate through Yahoo Messenger with customers, yet used this application also for personal communication with his brother and fiancée. After being fired, the employee sought the invalidity of the termination notice before Romanian courts, claiming that the employer violated his right to respect for private life as protected by the European Convention on Human Rights.
In January 2016, the ECHR chamber sided with the employer. However, on 5 September 2017, the court’s grand chamber ruled to the contrary, claiming that the Romanian courts had failed to strike a fair balance between the interests of the parties involved, and that the employee’s right to respect for private life had been violated.
The grand chamber in particular pointed to the Romanian courts’ failure to determine whether the employee had received prior notice of the possibility that his communication might be monitored, or whether the communication could have been accessed without the employee’s knowledge. Furthermore, the courts had not questioned whether the employee had been informed of the nature and extent of the monitoring, and how far his private life had been intruded upon. The national courts had also failed to determine the specific reasons used to justify the introduction of the monitoring measures and whether the employer could have used measures entailing less intrusion upon the employee’s privacy while meeting the same purpose.
Czech regulations concerning intrusions into employees’ privacy by employers are stricter than the Romanian ones; hence, the decision has no real effect on Czech employers. It remains true that a violation of employees’ privacy at the workplace and at the employer’s premises is only admissible for significant reasons. For example, the specific nature of an employer’s activity may justify the implementation of adequate monitoring. The protection of employee privacy is not unlimited, but statutory limits have to be observed. The employer is explicitly obliged to inform the employee of the extent and manner of monitoring, and must make sure that such an intrusion into privacy is proportionate. It is to be expected that with the increase in electronic communication tools the importance of this issue in labour-law relations will grow.