How private is communication in the workplace?

The European Court of Human Rights has recently considered the issue of whether employees have a right to privacy in terms of their private correspondence in the workplace. In Barbulescu v Romania, the Grand Chamber of the ECHR overturned an earlier decision in relation to an employee's right to privacy in the workplace.

Mr Bărbulescu, a Romanian national, lodged an application against Romania with the ECHR in terms of Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms. He claimed that his employer’s decision to terminate his contract of employment in breach of his Article 8 right (respect for his private life and correspondence).

Mr Bărbulescu claimed that the domestic courts in Romania had failed to comply with their obligation to protect his rights. In 2016, the ECHR held that Mr Bărbulescu's employer acted lawfully when it monitored his Yahoo messenger account. On appeal, the Grand Chamber reversed that decision.

The Grand Chamber held that workers have a right to respect for privacy in the workplace. It stated that where an employer seeks to monitor employee emails and messages, it should tell employees that their communications might be monitored. In the case of Mr Bărbulescu, even though he knew he was not permitted to use work computers for personal reasons, the employer did not inform him that it was monitoring his communications. Interestingly, this is closely aligned with the South African legal position.

In South Africa, the Regulation of Interception of Communications and Provision of Communication-Related Information Act regulates the interception and monitoring of employee communication in the workplace. Section 2 of RICA contains a general prohibition against intentional interception of any communication.

Two notable exceptions to the general prohibition are (1) the employee consented to the interception, or (2) the interception was done for a general business purpose. Employers can readily ensure that they obtain the consent of the employees by inserting such a provision in an employment contract or into a well-drafted policy. It is simpler to rely on and prove prior consent than satisfying the requirements for the general business purpose exception.

Employers may be guilty of an offence and held liable to a fine of up to R 2 000 000, or even imprisonment for a period up to 10 years, if they breach the RICA prohibition on interception.

Getting employee consent before interceptions communication is not only the right thing to do to stay out of jail or avoid a hefty fine, but it will also assist in managing the employee relations climate. Employees who know that their communications are monitored and have consented to it being intercepted are less likely to feel aggrieved when their employer takes such steps. Employees should be expected to feel disgruntled when they labour under the misapprehension that their private emails are safe from employer scrutiny when, in fact, the employer intercepts or monitors them.

By Tracy Robbins, Associate, Employment & Compensation Practice, Baker McKenzie Johannesburg

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