Man at work in office

The short answer to this is ‘not necessarily’.  In certain circumstances, employers may be justified in reading workers’ private online messages.

In this particular case, Barbulescu v Romania, the European Court of Human Rights (“ECHR”) held that the dismissal of an employee for having used his professional email account for personal purposes during working hours did not violate Article 8 of the European Convention on Human Rights. The judges said the employer could monitor the messages because it believed it was accessing a work account.

This employee had been asked to set up a Yahoo account by his employer for professional work purposes. The employer suspected that this employee wasn’t doing enough work and asked that employee whether he was using the Yahoo account for personal e-mails. The employee said he wasn’t.   The employer, without asking the employee, went into the account to get evidence that he had in fact been using it for a lot of personal e-mails so as to address the issue of firstly that the employee had lied and secondly, he ought to be doing some work.  The company internal policy expressly prohibited the use of company devices (e.g., computers, telephones) for personal purposes and he was dismissed.

Barbulescu challenged his dismissal before the national Romanian courts, which rejected his claim, and then before the ECHR.

The ECHR considers generally that employees must have a reasonable expectation of privacy for personal calls, e-mails and internet usage they make at work. In the decision in this case, the employee could not have such expectation of privacy since the company internal policy expressly prohibited the use of company devices for personal purposes and the employer’s surveillance had been reasonable.  The Court noted that it is not unreasonable for an employer to want to verify that his employees are completing their professional tasks during working hours.

Employers therefore do not have the right to generally snoop on an employee’s personal communications but where there are reasonable grounds to suspect that an employee is in breach of a clear company policy and their behaviour is affecting their job, action taken against that employee may well be deemed to be fair.

Marie-Clare Swallow, Senior HR Consultant, Alcumus