Recent headlines in the news seem to suggest that employers can now monitor employees’ emails and internet messaging communications. But is this correct? The short answer is: “sometimes”.

The European Court of Human Rights (ECHR) has heard a case brought by Mr Barbulescu (Mr B), a Romanian national, alleging that his country’s government, in particular their domestic courts, had failed to protect his right to private life. The allegation centred on Mr B’s dismissal from employment for sending private messages via Yahoo on his employer’s computer, in his work time. This was prohibited within the employer’s own policies. His employer was alerted that he may have been using the internet for personal use. When questioned, Mr B denied this, saying that the messages he sent were for business use. Upon further investigation into the content of the communications, it was found that these were personal in nature and Mr B was presented with a transcript of these.

The decision to dismiss was held to be fair by Romania’s courts.

The right to respect of an individual’s private life derives from the European Convention for the Protection of Human Rights and Fundamental Freedoms, implemented in the UK by the Human Rights Act 1998. The ECHR had to decide whether, in the context of disciplinary proceedings only, monitoring an employee’s work emails contravened this right. The Court found that Mr B’s right to privacy had been engaged, in that personal internet communications were, on the face of it, part of his “private life”. However, there had been no unlawful breach of this right for the following reasons:

  • Mr B’s employer had a clear policy which did not allow personal internet usage at work.
  • Based upon what Mr B had told them in the disciplinary investigation, the employer accessed his messages in the belief that they were work-related and not personal in nature and that such access was, therefore, legitimate.
  • It was not unreasonable for an employer to want to verify that employees are completing their professional tasks during working hours.
  • No other communications or documents on Mr B’s computer were examined by his employer and, therefore, their search was deemed to have been limited in scope and proportionate.

This decision is limited to its facts. Mr B had told his employer, when questioned, that his communications were professional in nature. The employer was entitled to investigate this. The situation may have been different if the ECHR had found that the search was conducted without proper cause.

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