Employers can read private emails
Labour & European Law Review Weekly Issue 453 20 January 2016
The European Court of Human Rights has decided in the case of Bărbulescu v Romania that it was not a breach of an employee’s right to privacy for their employer to access their professional internet account.
At his employer’s request, Mr Bărbulescu created a Yahoo Messenger account to respond to clients’ enquiries. However, after monitoring the account for a short period, his employer discovered that he had used it to exchange very personal (and in some instances, intimate) messages with his brother and fiancée.
Mr Bărbulescu initially denied the allegation but was then presented with a transcript of the communications. After a disciplinary hearing, he was dismissed for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.
After his complaint was rejected by the lower courts, Mr Bărbulescu appealed to the European Court of Human Rights on the basis that his employer had breached his right to privacy under Article 8 of the Convention on Human Rights.
The Court rejected his claim on the ground that it was not unreasonable for an employer to verify whether their employees were doing what they were supposed to do during working hours. In any event, Mr Bărbulescu’s employer had only accessed the account to find information that related to his professional activities, which was in itself a legitimate exercise.
It concluded therefore that there had not been a violation of Article 8.
Iain Birrell of Thompsons Solicitors commented “despite coverage to the contrary this is not a green light to employers to spy on employees willy-nilly, nor is the ECHR’s approach anything new. For years employees have had a reasonable expectation of privacy which can only be overridden in specific cases. Here no such reasonable expectation of privacy existed as it was a work email address, set-up specifically for work purposes, during work time with personal use being expressly prohibited. The moral of this story is that if you don’t want your employer to read your emails, don’t use their email system.
“Mr Bărbulescu’s argument was really little different to that of a thief arguing that the CCTV which caught him red-handed breached his right to privacy. No one would say that is anything other than nonsense, and it is regrettable that in bringing this claim he has inadvertently given fresh impetus to those who would gladly limit our rights by reference to spurious cases such as this.”
To read the judgment in full, go to: http://tinyurl.com/gses4yq