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Monitoring employees: When can private messages at work be read by employers?

The recent case of Barbulescu v Romania and the decision of the European Court of Human Rights (“ECHR”) tested the extent to which employers can monitor or access private messages of employees at work. Despite sensationalised media reports, the decision does not however, give employers free rein to spy on their employees.

The Facts

In this case, the employee had set up a Yahoo Messenger account, at the employer’s request, to deal with client queries about company products. The employer monitored the Yahoo Messenger account in the normal course of business to check that the client queries were being dealt with properly. It discovered the employee had been using the company account to send personal messages which breached the employer’s strict policy on personal use of company systems. The employee denied misusing the system when confronted, despite being shown evidence of the personal messages. Following his dismissal, he then brought a claim under Article 8 of the European Convention on Human Rights, namely that his right to privacy had been breached.

The Decision

The case was referred to the ECHR which held that the employer’s monitoring had been reasonable and proportionate. The employer had reasonably assumed that the Yahoo messages were work-related and their monitoring to check the quality of the communications with clients was reasonable to ensure its employees were working during working hours. The employer had not searched other personal data or documents stored on the employee’s computer to present as evidence in the disciplinary process, therefore the monitoring was of limited scope and proportionate in the circumstances.

This case highlights the importance of having a clear IT and Communications Policy which sets out the expected standards of conduct and explains when monitoring may occur.  Employers should not take this ruling as a ‘green light’ to excessively monitor employee communications, and certainly not demand access to content sent, received or stored on personal devices. Employees should still have a reasonable expectation of privacy.

Decision E

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