Opinion.

EU ruling confirms employers can read employees’ private messages

15/01/2016

At a glance

Judges in the European Court of Human Rights have held that employers are permitted to read workers’ private messages sent via e-mail and private chat software during working hours.

The judgment, handed down on Tuesday, related to a case brought by an engineer in Romania, Mr Bogdan Barbulescu (“Mr B”), who claimed his employer had infringed his rights under Article 8 of the European Convention on Human Rights (the right to respect for private and family life, the home and correspondence). Mr B’s employer had accessed his Yahoo Messenger account, believing it to be a work account holding professional contacts. The judges held that it was not unreasonable for an employer to want to verify that’s its employees were completing their professional tasks during working hours, and therefore the employer had not acted beyond its powers.

In detail

Facts

The employer had strictly forbidden its staff from using computers and other equipment for personal purposes. Mr B had created a Yahoo Messenger account for his work contacts, and his employer monitored the account for a week in 2007 to check he was completing his work, and whether he had breached company rules by sending personal messages during office hours. Mr Barbulescu claimed he had used the account to advise clients, however his employer found he had been sending private messages to his fiancée and brother, detailing his sexual health problems and other personal information. Mr B was fired for using company property for personal purposes, in breach of company rules.

The Court held that this was proportionate because the company believed it was accessing information relating to Mr B’s professional activities, it did not access other information stored on his work computer, and he had been given prior warning that the company could check his messages. Whilst Article 8 had been engaged, the Romanian courts had used the transcript of Mr B’s personal communications only to establish if Mr B had breached his employer’s internal rules. The Court concluded that the Romanian courts had fairly balanced Mr B’s Article 8 rights with the interests of his employer.

It is unclear whether it would have made a difference had Mr Barbulescu sent the messages from a personal device.

Implications for UK employers

UK law currently allows proportionate checks on employees’ communications. Employers should bear in mind the following points going forward:

  • Policy transparency. Employers can monitor their employees during the working day provided they clearly explain any rules allowing them to check their employees’ online activities.
  • Notify and get consent. Employees should be personally notified of the policy and should consent to the said policy explicitly.
  • Tread carefully. The case does not mean that all employers can monitor and access their employees’ personal email indiscriminately. In this case the employer had a clear ban on the use of computers for personal purposes. Many employers tolerate some level of personal email use at work, and should they wish to monitor or access these accounts without justification, they could be in breach of privacy if they do not have clear policies allowing them to do so. You should clarify exactly what degree of personal activity is allowed on company equipment and during office hours.

Tim Ryan
Liz Kilburn

 

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