Is it lawful to read employees’ private messages at work? The European Court of Human Rights (ECHR) has ruled this week that it can be lawful for employers to read private messages sent by employees during their working hours in certain circumstances.

Background

Mr Bărbulesca (B), a Romanian National, was employed by a private company (‘the Employer’) as an engineer in charge of sales.  At his Employer’s request, B opened a Yahoo Messenger account for the purpose of responding to clients’ enquiries.

B was informed by his employer that the account had been monitored and it appeared to show that the account had been used for personal purposes contrary to the Employer’s internal rules and procedures.

Subsequently, the Employer terminated B’s employment for breach of the company’s internal regulations, namely the prohibition on using the Employer’s computers for personal purposes.

B challenged his employer’s decision in the Bucharest County Court.  The domestic court found that B’s Employer had acted within its disciplinary powers and noted that B had been duly informed of the Employer’s rules.

Following an unsuccessful appeal, B applied to the ECHR to argue that his Employer’s conduct disproportionately infringed his Article 8 rights, being the right to respect for an individual’s private and family life, his home and his correspondence.

B alleged, in particular, that the Employer’s decision to terminate his employment contract had been based on a breach of his Article 8 right and that the domestic courts had failed to protect such rights.

Outcome

The ECHR held that there had been no violation of Article 8 and that his Employer had acted lawfully when reading his private messages in these particular circumstances.

In reaching this decision, the ECHR examined whether there was a fair balance between the employee’s right to respect for his private life and correspondence and his employer’s interests.

The following factors were given particular consideration by the court:-

  • The Employer expressly prohibited all personal use of company’s facilities, including computers.
  • B had prior warning that his online activity could be monitored.
  • B accessed the messenger account on a company computer and had done so during working hours.
  • The Employer had accessed Mr B’s Yahoo Messenger account in the belief that it had contained professional/work messages.
  • It was not unreasonable for the employer to want to verify that employees are completing their professional tasks during working hours.

Summary

Many employers would agree with the court’s conclusion that it is not unreasonable to want to verify that employees are indeed working during working hours.  However, this decision does not give UK employers an unfettered right to monitor employees’ online activity.  If anything it highlights the need for employers to have transparent policies in place and to draw their rules to their employees’ attention.

It also provides employers with a useful reminder that monitoring electronic communications must be legitimate in scope and proportionate.

Bărbulescu v Romania ECHR 61496/08

For employment queries please contact Lisa Kemp on 0121 227 3888 or lkemp@thursfields.co.uk

 

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