Employers are entitled to read workers’ private e-messages

The European Court of Human Rights (ECHR) has ruled that an employer was within their rights to read a worker’s personal instant messenger chats that were sent whilst he was at work (http://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=003-5268562-6546349&filename=Judgment%20Barbulescu%20v.%20Romania%20-%20monitoring%20of%20an%20employee%u2019s%20%20use%20of%20the%20Internet%20and%20his%20resulting%20dismissal.pdf)

Judges said the employee had breached the company’s rules and that his employer had a right to check on his activities. The judges’ decision binds all countries that have ratified the European Convention on Human Rights, including Britain.

The worker, an engineer in Romania named Bogdan Barbulescu, had hoped the court would rule that his employer had breached his right to confidential correspondence when it accessed his messages and subsequently sacked him in 2007.

His employer had discovered that Barbulescu was using Yahoo Messenger for personal contacts, as well as professional ones. The judges said that it was “not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours,” adding: “The employer acted within its disciplinary powers since, as the domestic courts found, it had accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate. The court sees no reason to question these findings.”

Barbulescu – who had already lost his case in Romania’s domestic courts – had appealed to the ECHR, arguing that his right to a private life had been breached when his employer had read a log of messages on a Yahoo Messenger account he had set up for work, as well as that from a second personal one.

The firm had rules in place, banning staff from sending personal messages at work. To check his account, the judges said it had been necessary for Barbulescu’s employer to access his records.

The device used to send the messages was owned by the employer, and the judges did not elaborate on whether it would have made any difference if he had used a personal device.

One of the eight judges disagreed with the decision, saying that a blanket ban on personal internet use was unacceptable, adding that in future, all employers should clearly explain any rules that would allow them to check on their workers’ online activities.

Andrew Firman, employment Partner at Carter Lemon Camerons (CLC) said that the judgment was in line with UK law and past cases. “In this case, the employer stated clearly that employees were not to use the internet for anything but work. Although the decision in the case may not be popular, it certainly is legal. What the judgment does do is underline the importance of having appropriate and lawful employee-monitoring policies in place, making sure that they are communicated to employees and adhered to by the employer.