Monitoring of employee’s work correspondence: the constitutional right to secrecy of correspondence in the light of labour relations

The article examines one of the controversial issues in the field of labour relations, namely, monitoring of an employee’s work correspondence as a form of employer’s control. The secrecy of correspondence is guaranteed by the Constitution of Ukraine and a number of global and regional international acts. This right is not declarative and its protection is ensured by legal instruments of substantive and procedural law. The current legislation prohibits monitoring of a person’s correspondence, and violation of this prohibition entails legal liability. In addition, national legislation protects the secrecy of correspondence even if the person who sent the letter is deceased. The only exceptions are during investigative actions and in the presence of a court decision. However, in the area of labour relations, correspondence is part of the employment relationship. Modern labour relations use correspondence as a common tool for fulfilling labour relations. So, a natural question arises: can the employer monitor the employee’s work correspondence? The answer is yes, since work-related correspondence is carried out on behalf of the employer or in its interests. Work correspondence is sent and stored on electronic resources provided to the employee by the employer. The author presumes that an employee should not use work resources for private purposes. The article reveals the constitutional aspect of the protection of the right to secrecy of correspondence, and cites the main international acts guaranteeing respect for private life and inviolability of correspondence. A special place in the study is devoted to the analysis of the case law of the European Court of Human Rights, which examined this aspect through the prism of Article 8 of the European Convention on Human Rights. The author presents the criteria developed by the ECHR for determining whether or not an interference with a person’s private life is an intrusion. The article concludes with the wording of the provision of the draft Labour Code of Ukraine, which proposes to define the legal framework for monitoring an employee’s work correspondence. The author also provides a commentary on certain provisions for a better understanding of the purpose and objectives of the proposed rule.