Monitoring of Employee’s Private Communication at Work Does Not Breach the Right to Privacy

Jan 15, 2016
An employee brought a claim against his former employer for violation of Article 8 of the European Convention of Human Rights, the right to respect for his private and family life, his home and his correspondence, after he was dismissed for using his work messenger account for private communications.

The employee had been required to create a Yahoo Messenger account for the purpose of responding to clients’ enquiries. The employer monitored the account for a week and established that contrary to their internal policies, the internet had been used for personal purposes. When the employee denied this, the employer presented a 45 page transcript of the employee’s communications on Yahoo Messenger including conversations with his fiancé and brother.

Following his dismissal, the employee complained to the Bucharest County Court that the decision to dismiss was invalid since, by accessing his communications, his employer had violated his right to correspondence protected by the Romanian Constitution and the Criminal Code. The County Court dismissed his claim. 

The employee appealed to the Bucharest Court of Appeal who similarly dismissed his case, stating that “the employer has the right and the obligation to ensure the functioning of the company and, to this end, [the right] to check the manner in which its employees complete their professional tasks”. The court held that on the basis that the employee had been warned against using company resources for personal purposes, and had gone on to deny having used them for such, it could not be held to be a violation of his privacy to monitor and transcribe the correspondence.

The Employee appealed to the European Court of Human Rights (ECHR). 

The question before the ECHR was whether the State had done enough to protect the employee’s Article 8 rights in allowing the employer to intercept communications and whether the right balance had been struck between the employee’s right to privacy and the employers legitimate business aim. 

The ECHR held that there had been no Article 8 violation. The employee was able to raise his arguments related to the alleged breach of his private life and correspondence by his employer before the domestic courts and his arguments were duly examined by those courts. Both courts found the employer had accessed the Yahoo messenger account in the belief that it contained professional messages as was initially alleged by the employee. Further, the employer went no further than examining the Yahoo Messenger account, and the monitoring was limited in scope on proportionate. 

The judgment is binding on courts in the UK as a signatory of the European Convention on Human Rights. The judgment is in line with existing law in the UK which allows proportionate checks on employee’s communications but does underlie the importance of an effective and appropriately drafted IT policy which is duly communicated to employees.

Gary Smith

About the author

Gary Smith

Gary joined Nockolds in 2007 and is a Partner in our Employment Law Team. Before joining the firm Gary studied law at the University of Kent. ...

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