Last reviewed 3 March 2016
Stuart Chamberlain, author and employment law consultant, considers the question and sounds a note of caution.
The European Court of Human Rights (ECHR) ruled in Barbelescu v Romania in January 2016 that a company that read an employee’s Yahoo Messenger chats that he sent while he was at work was within its rights.
Mr Barbelescu sent private messages to his fiancée and brother on an email account the employer had expressly stated was only to be used for work purposes. He denied that he was using the account for personal purposes so the employer examined all his messages. He was dismissed for contravening company policy.
After unsuccessful battles in the Romanian courts Mr Barbelescu took his claim to the ECHR, alleging that, by accessing his personal messages, his employer had breached his right to privacy under Article 8 of the European Convention on Human Rights. Article 8 provides a “qualified” right to private and family life, the house and communications. The “qualified” right means that restrictions on the right to privacy may be justified in order to protect the rights and freedoms of others (including employers).
The Court found that Mr Barbelescu’s private life and correspondence had been engaged but that his employer’s monitoring of these communications had been reasonable in the context of disciplinary proceedings. Article 8 had not been violated. The judges said that the employer had a right to check the employee was completing his work and that he had breached the company’s rules by sending messages on its time.
Contrary to widespread press speculation (and misleading conclusions) on this decision, it does not mean that bosses now have the “green light” to “snoop” unrestrictedly on employees’ private emails.
Further, the right to privacy remains. The employer has obligations under the Data Protection Act and its accompanying Employment Practices Code (see below).
Employers may not unilaterally access employees’ private mobile phones or email accounts that are used outside work. The position might be different, however, if the employee accesses private emails during working hours. The law does allow employee communications to be monitored or intercepted in certain circumstances, including an employer checking that an employee is not breaching company policies on social media (eg email) use in the workplace.
Employers should ensure that they have in place a policy that forbids the use of company communications systems for private use and make clear that monitoring of these communications may take place if an employee appears to be in breach of this company policy.