Can your private messages at work be read by your employer?

Our legal partner Humphries Kirk LLP explains the latest legal developments.

The European Court of Human Rights (ECtHR) has handed down a decision on the right to privacy under Article 8 of the European Convention of Human Rights, in the context of a private sector employer’s monitoring of an employee’s work-related Yahoo Messenger account (Barbulescu v Romania 2016).

In this case, the employee was dismissed for personal internet use at work, contrary to the employer’s rules which strictly prohibited any personal use whatsoever of the company’s computers, internet or telephones.

As part of its investigation the employer accessed intimate messages sent by the employee to his fiancée and his brother. These messages were printed by the employer and used in the disciplinary proceedings as well as in the employee’s subsequent court challenge.

The Romanian courts upheld the employee’s dismissal, and the ECtHR held that the monitoring of his internet usage and the use of the Yahoo messages in disciplinary proceedings was a proportionate interference in his Article 8 rights.

Green light to snoop?

The case received a great deal of media coverage, some of it giving the misleading impression that the decision gives employers a green light to snoop on employees’ personal emails.

However, the decision does not overrule previous ECtHR case law on the reasonable expectation of privacy and the need for any interference in privacy to be proportionate. Nor does it override existing UK legislation, including the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, which place important limitations on employers’ power to monitor their employees’ private communications.

The need for clear policies

This case is unusual on its facts, at least as far as UK workplaces are concerned. Most UK employers allow or at least tolerate some personal internet and telephone use at work, and to that extent the situation in Barbulescu is less likely to occur in practice. Moreover, there is a growing body of unfair dismissal case law highlighting the need for employers to put in place clear policies and avoid disproportionate responses.

Changes in how employees use technology are also presenting new challenges. Many employees in any event have smartphones that may make personal use of the employers’ systems less of a necessity (and make monitoring of their workplace activities by employers harder).

‘Bring your own device’ phenomenon

On the other hand the “Bring Your Own Device” (BYOD) phenomenon is leading to an even greater blurring between the private and the professional in many workplaces. The privacy implications of BYOD, and in particular the scope of employees’ “reasonable expectations of privacy” when using their own devices for both work and personal matters, has not yet been explored in the case law.