Judges from the European Court of Human Rights (ECHR) have ruled that employers can read workers’ private messages sent via chat software and webmail accounts during working hours.
Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancée and his brother, including messages about his health and sex life. This was in breach of his employment contract. His employer, discovering this accidentally, dismissed him.
Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights under Article 8 (respect for private life and correspondence).
The ECHR held that he had breached the company’s rules and that the employer had a right to check on his activities.
The crucial factors in this case were that all personal use of a computer was strictly forbidden and that Mr Barbulescu insisted that he had not broken that rule. The monitoring carried out by the employer was not about the content of the messages but about the fact that they existed. Their use was restricted to the question of whether Mr Barbulescu had committed misconduct and the ECHR held that that was reasonable.
Whilst the tabloid press will no doubt be concerned with sensationalising that the ECHR has supposedly given employers the unfettered right to spy on staff emails, this is completely wrong!
The ECHR has no interest in telling other countries what their laws should be; its primary concern is whether there has been a breach of the Convention. If the ECHR finds that there is no breach of the Convention if employers spy on employees, then this does not automatically mean that UK employers are at liberty to do so! The Data Protection Act and the Employment Rights Act in this country tackle such a situation.
In short, this ruling does nothing to change current UK law.
The judgement underlines the importance of having appropriate and lawful employee-monitoring policies in place. All employees should be notified personally of said policy and consent to it explicitly.
For more information or advice please feel free to contact a member of our Employment team.