The European Court of Human Rights (ECHR) has published its judgment in the case of Bărbulescu v. Romania and confirmed that an employer who read an employee’s private instant messages had not breached the employee’s right to privacy.
The Claimant, Mr Bărbulescu, was employed by a private company, as an engineer. At his employer’s request, he created a Yahoo Messenger account so that the company could respond quickly to customer enquiries. His employer monitored the Yahoo communications and found that the Claimant had used the account to send personal messages to his brother and his fiancée. Mr Bărbulescu informed his employer that he had only used the Yahoo service for client enquiries. His employer provided a transcript of the messages which confirmed that not only had the service been used for private purposes but that he had discussed issues of a personal nature. The Claimant was dismissed by his employer on 1st August 2007.
The Claimant argued that his dismissal was unfair as it was based on a breach of his right to privacy.
The ECHR decided that an employer is entitled to check an employee’s communications to check that he had completed his tasks during work hours. It was noted that in this case, the employer was not expecting to find any personal messages.
What does this mean for my business?
This decision clarifies that employers can monitor their employees’ emails, instant messages etc. However, if you monitor employee communications you must have an email or communications policy and communicate to your staff that they should have no expectation of privacy in their work communications. Please contact us if you need an email or communications policy drafting.
Please be aware that the law is different for public authority employers.
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