The ECHR has ruled that employers can read workers' private messages sent via chat software and webmail accounts during working hours and were entitled to choose to terminate employment lawfully based on the content.

Last month the court ruled that it was not "unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours" and that the employer has a right to snoop. The Judges said that the employee, had, in this instance, breached the company's rules and that his employer had a right to check on his activities.

The Judges did caveat the decision saying that such IT policies must also protect workers against unfettered snooping.

Background

Mr Barbulescu was employed in Romania as an engineer in charge of sales. His employer had a strict policy of not permitting private use by employees of its computer and telecommunications systems. Mr Barbulescu was asked by his employer to set up a Yahoo Messenger account so that Mr Barbulescu could communicate with customers.

Sometime later, the employer notified Mr Barbulescu that it has been monitoring his account and they believed that he had been using it for private communications. Mr Barbulescu denied this at which point his employer presented him with a 45 page transcript of all his Yahoo Messenger communications, including private communications with his fiancée and brother. Mr Barbulescu was dismissed for breaching the employer’s policy on personal use of computer systems.

Mr Barbulescu brought an employment claim in the Romanian courts alleging that his dismissal was void on the basis that his employer had breached his right to privacy by accessing his private communications. He failed before the Romanian courts and took his case to the European Court of Human Rights (ECHR).

The decision

The ECHR ruled that employers can read workers' private messages sent via chat software and webmail accounts during working hours and were entitled to choose to terminate employment lawfully based on the content.

The court ruled that it was not "unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours" and that the employer has a right to snoop.

The Judges stated Mr Barbulescu, had, in this instance, breached the company's rules and that his employer had a right to check on his activities. The Judges did caveat the decision saying that such IT policies must also protect workers against unfettered snooping.

Commentary

This decision is not directly binding case law in the British Courts but judges must take into account the ECHR's decisions.

This case is in line with historic employment cases and supports the need for having appropriate and lawful employee-monitoring policies in place and making sure both that they are communicated to employees and that they are adhered to by the employer. Such policies need to specific if employers wish to monitor company devices and clarify what their staff are permitted to do during work time and on work devices.  Although it is not popular, it is completely legal to place such prohibitions on staff.

Barbulescu -v- Romania  (Application no. 61496/08)