Is a personal message sent at work really private?

Employees and Employers should be aware of a new ruling in the European Court of Human Rights that effectively allows Employers to read personal emails on an external platform.

Employees know, or should know, that tweeting, blogging or posting on a public social media site can lead to disciplinary proceedings and possible dismissal at work if the tweets, blogs or posts are found to contain material that would amount to misconduct and the employer can be associated or identified from the post. This latest case however relates to emails on a Yahoo messenger account.

The facts

Mr Barbulescu was employed by a private company as an engineer. He created a Yahoo messenger account at the behest of his employer to enable him to respond to client enquiries. Mr Barbulescu, it seemed, used the email account for personal emails including some about relationships and his sex life. On 13 July 2007, the employer informed Mr Barbulescu that his Yahoo messenger communications had been monitored from 5-13 July 2007 and that those messages showed he had used email for personal purposes contrary to company policy. He was dismissed.

Mr Barbulescu (having fought and lost a claim in the Romanian national courts) contested that his Article 8 right, (Right to respect for private and family life) had been violated. The ECHR ruled that whilst the Article 8 right had been engaged, the employer’s monitoring of Mr Barbulescu’s emails pursuant to workplace rules and regulations was reasonable in the context of disciplinary proceedings. The Court, by a majority, declared that although the purpose of Article 8 is to protect an individual against arbitrary interference by public authorities, that did not mean a complete abstinence from interference. The Court held a fair balance needed to be found between a right to a private life and the employer’s interests in checking that their employees were completing their professional tasks in working hours.

Perhaps important to note is that the Employer accessed the email account in the belief it contained client work related communications only and that the Employer had followed Romanian law on disciplinary proceedings. Also of note was that whilst this was not a workplace email account, it had been created at the request of the employer for the purposes of work.

Whilst not therefore carte blanche for an employer to access any or all personal email accounts of its employees, both Employers and Employees should be aware of the impact this decision could have on the workplace and disciplinary proceedings.

Contact: Emma or Natalia in our Employment department