European court privacy ruling does not permit snooping, say experts

Topics: Employment,European Court of Human Rights

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A ruling by the European Court of Human Rights on an employer’s right to read its workers’ emails is in line with UK law and will not allow companies to freely intercept personal communications, lawyers have said.

The highly publicised decision was widely heralded as enabling employers to read private staff emails as well as messages on WhatsApp and Yahoo, at will.

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But lawyers have pointed out that the scope of the ruling does not go as far as this, and does not significantly alter what was already the position under UK law.

The ruling was made off the back of a case in Romania where Bogdan Mihai Bărbulescu complained that his employer’s decision to dismiss him was ‘null and void’, after he was fired for using his work email to send personal messages. 

He said that by monitoring his communications his employer had breached his right to a private life.

But the court ruled against him as it found that the company had a right to check its employees’ activities and that Bărbulescu had breached company policy.

Kathryn Dooks, an employment partner at Kemp Little, said that while on the face of it the case ‘is surprising and troubling’ for employees, the outcome is broadly in line with existing employment tribunal decisions in the area.

As an example she said that previous tribunals have found that if an employer has banned its workers from using their work email and IT systems for personal use, they can dismiss an employee for breaching this as long as the policy is clearly set out. 

Christopher Tutton, a partner at Irwin Mitchell, also stressed that, despite the ruling, any monitoring must be indicated as part of company policy.

He said: ‘It’s important that employers understand this judgment because it doesn’t mean that a company can “bug” private phones or devices. This decision relates to the monitoring of workplace equipment in circumstances where the employee knew that this might take place and there was a policy in place spelling out what the employee could or could not use his work systems [for].’

Richard Freedman, an employment solicitor at Rosenblatt, said that while this was no doubt a significant ruling, this was a very fact-specific case. 

He said it was important to note that the Yahoo! Messenger account in question had initially been created for work, meaning the employer believed it was monitoring a work account, and that the employer had a policy which banned personal use of its IT systems.

‘Accordingly, this decision is highly unlikely to definitively change the distinction between an employer’s ability to look at professional material versus its ability to monitor personal content,’ he said.

‘This decision is simply not the perceived “go-ahead” for employers to start monitoring and intercepting employees’ personal communications at will.’

Readers' comments (1)

  • One employment lawyer says that this is a "significant" ruling; another says that it's in line with existing employment tribunal decisions. Can some specialist reader please enlighten us?

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