Is the right to respect for private life and correspondence breached if employers monitor employees?

In a landmark case the European Court of Human Rights have ruled that employers have the right to read personal messages sent on private messaging platforms during work hours.

In the ruling, it was decided that a Romanian company was within its rights to read messages of a deeply personal nature, which one of its engineers had sent over Yahoo Messenger whilst he was supposed to be working. The engineer had been asked by the employer to set up a Yahoo Messenger account for work purposes.

He was instructed to protect this account by choosing his own password and therefore expected it to remain private. In 2007 the employer accessed both the Yahoo Messenger account they had instructed him to set up, and another set up for his own use, after he denied using his work computer for personal matters. The employer monitored both accounts for eight days after which they presented him with a 45-page printout of all the personal messages he had sent – from both accounts.

The employee has been talking to his fiancée and his brother about “very intimate” issues such as his health and sex life, this was in breach of his employment contract. The employer considered that the evidence showed the engineer has blatantly been wasting his time and they dismissed him for breaching company policies which prohibited staff from using work resources for personal matters.

The engineer asked the European court to exclude all evidence of his personal communications on the grounds it infringed his Convention rights to a “private life… and correspondence”, (article 8 of the European Convention on Human Rights). The European Court held that Article 8 was engaged, but that they were entitled to look at that evidence in deciding whether the dismissal was justified. The European Court was swayed by the fact that the Romanian court judgment only revealed the fact that they were personal messages, not the precise content of the personal messages. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours and stated in the ruling; “the employer…accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate”.

The decision affects all the EU countries that have ratified the European Convention on Human Rights (ECHR) – this includes the United Kingdom.

In light of the decision, employees should be cautious not to use social media such as Facebook, Twitter, Google Chat or other messaging platforms at work. In addition to these, employers will now be allowed to monitor personal messages sent on Apple’s iMessage platform, WhatsApp and picture-sharing platforms like Snapchat and Instagram. Employees should now work on the assumption that any of their online activity whilst on duty could be monitored by their employer.

Employees should also refrain from sending personal information on any smartphone, computers. Laptop or tablet provided to them by their employer. Essentially, if you have a company owned device, don’t send private information on it as your employer may give themselves the right to monitor it, this includes outside of work hours.

Many employers already routinely monitor online activity of their staff by reading work emails, logging employees’ keystrokes and tracking the web pages they visit. Often this is to ensure they catch any employees that might be breaking the law, sharing confidential information which may put the company at risk or to look for signs that an employee may be considering leaving. As long as staff are warned in writing – for example in their employment contract or within a staff handbook policy, this sort of monitoring is allowed.

In light of the new ruling, employers should be clear with their staff about what they consider acceptable in terms of accessing the internet or using work devices. The case should not be viewed as an opportunity for any company to assume that surveilling their staff’s use of personal communication tools is acceptable.

 

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