• Employers can read workers’ private messages, says European Court

  • 14 Jan 2016
  • Comments 3 comments

But CIPD warns organisations not to increase ‘snooping’ habits in response

Employers are being warned against ‘snooping’ on staff, despite the European Court of Human Rights (ECHR) ruling that an organisation that read a worker's personal messages sent while he was at work was within its rights.

Romanian engineer, Bogdan Bărbulescu, was dismissed for using his Yahoo Messenger email account – created for work purposes at his company's request – to send personal emails during working hours.

He claimed that his employer had violated his right to correspondence and was in breach of the Constitution and Criminal Code by accessing his communications. However, his complaint was dismissed on grounds that his employer had complied with dismissal proceedings and the complainant had been informed of company regulations.

Bărbulescu appealed, claiming his e-mails were protected by Article 8 – the right to respect for private and family life, the home and correspondence. The Court of Appeal held that the employer’s conduct had been reasonable and that monitoring had been the only way to establish whether a disciplinary breach had occurred.

Ben Willmott, head of public policy at the CIPD said the ruling was "not a green light for businesses to start snooping on employees".

“The line between work and personal life is becoming increasingly blurred. We know that the working day rarely fits into a nine-to-five mould any more. Employees often respond to work emails on personal devices outside of usual working hours so it makes sense that, on occasion, they may want to engage in social correspondence during the working day on a work device,” he said.

Research has shown excessive monitoring cultivates a culture of distrust and negatively impacts on employees' loyalty and commitment, Willmott added, and employers need to find the balance between their legislative rights and trust in the workforce.

He added: "Organisations need to be transparent about if they are doing it and why, for example, being clear on the risks that the monitoring is designed to prevent. Employers should also set out clear rules around what personal use they do allow and what the limitations on this may be, such as the hours in which it is permitted.”

Frances O’Grady, general secretary of the TUC said British workers put in "billions worth of unpaid overtime every year" and shouldn’t be punished for occasionally checking private emails.

“Big Brother bosses do not get the best out of employees,” she said. “Staff who are being snooped on are less productive and less healthy. It is essential that employers have clear policies on internet use so that people are not caught out."

Adam Rose, a data protection lawyer from Mishcon de Reya, said he wasn’t surprised by the ruling and expected other cases to emerge: "Though at first glance this judgment may seem controversial, in legal terms it makes total sense. Employers' systems are not there for the private use of employees, and employees can and should expect that their company has access to any information transferred via them.

"This judgment is likely to be an eye opener for many employees who in the past may not have thought twice about sending personal messages via their employer's systems."

The case follows news this week that The Daily Telegraph newspaper reportedly installed monitoring devices under employees' desks to track their movements. An email sent to employees after the devices were fitted said they were to help the company improve energy efficiency.

The newspaper is believed to have removed the devices following complaints from staff. 

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Comments (3)
  • I agree with Adam on this one, company systems are for company use. Most people have their own mobile devices these days so have less need to send personal correspondence via company means. Of course, this too can be abused - I recall presiding over a disciplinary case for an employee who spent more time on social media via their personal device whilst at work than they did actually working, and another where criminal activity was discovered being conducted via personal email in the workplace which left to vicarious liability. Ref the blurred lines of working hours reference, it works better for all when there is common sense about give and take, and sensible acknowledgement of boundaries and why they exist/whom they protect. Communication is always key (ironically) in these matters.

  • I'm always a bit confused by the perceived controversy with cases like this ECHR ruling.  When using company accounts on company equipment over a company network I have only ever assumed a company could access my communications and saved files if they chose.  It feels like being upset that people have been listening when you are using your mobile on a train.

    That is NOT to say that constant snooping or checks on employees, like a the Telegraph offices, is a desirable thing, and not being able to send any personal communications at all like in the Romania case is rather draconian.  But I have had a number of occasions in my career where employees have made 'private use' of company equipment/accounts which has led to disciplinary action, including dismissals, for inappropriate conduct with regards to other employees and even criminal activity.  It is reasonable that employers have the ability to check this if suspicion arises.  

  • It can convincingly be contended that relinquishing protection rights makes subjects less free without making them more secure, and sums to devastating opportunity keeping in mind the end goal to guard it. THE ECHR does not always get it right- To error with this type of judgement is a folly on part of the court in this case.