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Employers DO have the right to snoop on private emails/messages

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Employers DO have the right to snoop on private emails/messages


Barbulescu v Romania

The European Court of Human Rights (ECHR) has ruled that employers can justify reading workers’ private online messages. Subject to reasonableness/proportionality, the right to respect for private life and correspondence is NOT breached if employers monitor employees' personal communications at work.

Although the case was set in Romania the decision is binding in the UK as it has ratified the European Convention on Human Rights.

Background
Mr Barbulescu was an engineer who, whilst he was at work, used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life.  This was in breach of his employment contract and the employers policies.

His employer, discovering this accidentally, dismissed him because the company’s policies stated that it was forbidden to use computers and other equipment for personal purposes.

Mr Barbulescu however believed that his right to confidential correspondence had been breached when his employers presented him with a 45 page transcript of his messages, some of which were personal and to relatives. He argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.

Decision

The European Court of Human Rights held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified.  It was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. 

The judges ruled that employers had the right to check that employees were completing their work and therefore the right to monitor his messaging. They also said that the employee had breached the company’s rules by sending messages on its time.

The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours and ruled that it would not be unreasonable for an employer to want to ensure that employees were carrying out the tasks they were paid for, and that by accessing the Yahoo messages they were simply doing so.

However, the Court did say that the ruling did not give employers the power for unfettered control for snooping on private messages, and that a set of policies should be drawn up stating what communications can be accessed and for what reasons. In this case the company was acting within its policies and had every right to do so.

Implication for employers?

Unsurprisingly this case hit the front page news! Employers are always concerned when they feel staff aren’t doing their work and are spending a large proportion of time on their private messaging (the ruling will apply equally to any other messaging service e.g. Facebook, WhatsApp, Gmail etc) instead of actually working, so this case will certainly help them address it. BUT only if they have the right tools i.e. policies etc in place first of all and act with reasonableness and proportionality.

The company in this case was protected because it had the right policies in place that governed the monitoring of staff communications and the use of equipment.

It should be remembered this case is certainly not a ‘green light’ to pry into personal matters so please be careful!

If you do not have any relevant policies in place or you have a problem with someone accessing messaging Apps etc whilst at work and need some help, please get in touch.


 



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