In a judgment of 12 January, the European Court of Human Rights (ECtHR) has held that there was no violation of Article 8 of the European Convention on Human Rights (right to respect for private and family life, the home and correspondence) in circumstances where an employee was dismissed by his employer for having used his business Yahoo Messenger e-mail account for personal purposes.
In Bărbulescu v Romania, B was employed by a private company as an engineer. At his employer’s request, he created a Yahoo Messenger e-mail account in order to respond to client queries. He was dismissed for using that account to send personal messages to his family in breach of his employer's rules. He had been warned that his account was being monitored.
B challenged his employer’s decision before the domestic courts, complaining that his employer had violated his domestic right to correspondence. Following the dismissal of his appeal, B subsequently complained to the ECtHR that the domestic courts failed to respect his Article 8 rights. Although the ECtHR held that Article 8 was engaged, it ruled that there had been no violation, for two main reasons:
- First, it did not find it unreasonable that an employer would want to verify that employees were completing their professional tasks during work hours;
- Secondly, B had been able to raise his arguments related to the alleged breach before the domestic courts and there was no mention of the actual content of the e-mails. The domestic courts had only used the e-mail transcript to disprove B’s claim that he had only used the company’s computer for professional purposes. It was not the content of the e-mails which was the employer’s reason for dismissal but the fact that his communications from the work account were of a personal nature in breach of the company’s internal regulations.
Implications for employers
UK judges are not bound by ECtHR decisions. Nevertheless the decision confirms what we have previously advised, namely that employers can monitor e-mails or internet use in certain circumstances, such as for the purposes of detecting unauthorised use or detecting criminal activity. However, this does not provide a carte blanche for employers to snoop on employees’ personal e-mail accounts/WhatsApp messages (as has been erroneously reported by certain newspapers). The ECtHR did not consider whether the monitoring of a purely personal e-mail account would violate an individual's Article 8 right and employers should avoid engaging in such activity, as to do so may risk the employer falling foul of data protection or unlawful interception legislation.
The decision underlines the importance of having an employee monitoring policy in place, and communicating clearly the circumstances in which employees may or may not use work e-mail and internet sites for private communications. If you need any assistance drafting these policies, please contact Jonathan Kirsop, Beth Hale or your usual contact in our data privacy or employment teams.