A recent ruling by the European Court of Human Rights (ECHR) means that employers do have the right to monitor their employee’s online activity and read messages that are sent using company facilities whether those messages are business or personal.
Bogdan Mihai Barbulescu was an engineer in Romania, he was asked to create an account to deal with client queries, this he did but he created a further account whereby he messaged his fiancé and brother. The creation of this second account was against company rules and policy. He was informed in 2007 that he was being monitored and was presented with a transcript of 45 pages containing his activity both business and personal. He was then dismissed for breach of company rules.
The claim by Barbulescu that his privacy was breached was dismissed.
The Strasburg court ruled in favour of the employer stating it was “not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours.”
When speaking to HR Grapevine Beverley Sunderland, Managing Director of Crossland Employment Solicitors, explained the case: "In the case of Barbulescu, the employer had banned employees from using a Yahoo account to send personal messages and Barbulescu had told them he only used it for work purposes. Therefore the employer had accessed the account assuming it was being used for professional purposes only.
“However, there were two accounts - one was a personal one and one was a professional one - and they read both. The ECHR said that accessing the Yahoo account was not a breach of the employee’s right to a personal life because Barbulescu had no reasonable expectation of privacy. They also said that as Barbulescu had confirmed he only used it for work purposes and the employer was entitled to assume that, in light of their rules and this assurance, that the Yahoo account was being used for business purposes only and to ensure that their business was being properly conducted. If they had not had this rule, then the decision may well have been different.
"One of the eight ECHR judges in this case disagreed with the decision. They also said that a blanket ban on employees using the internet for personal purposes whilst at work was unacceptable. He said that all rules should be carefully spelt out to employees and they should specifically sign up to them”.
Sunderland also offered the following advice: “Employers should already have carefully worded email and internet policies that set out what is and is not acceptable in the workplace and in what circumstances the employer can access information on an employee’s computer. An employer must retain the right to look at anything on the employee’s computer to ensure that the employee is complying with the law and with their contractual obligations and also make it clear to employees that anything done on a work computer is open to scrutiny."
Employers should maintain caution when accessing private emails on a works computer. Although there are exemptions, employers could still find themselves breaching data protection laws as well as human rights arguments.
“Although a blanket ban on internet access is quite lawful in the UK as the law stands, a much more proportionate response is to say to employees that they can access the internet during breaks and their lunch hour (subject of course to certain categories of sites being completely out of bounds such as pornography). However, this will make it much more difficult for an employer to use the same sorts of arguments as in this case, if they know that accounts are purely personal,” she continued.
The ECHR ruling will have repercussions in the UK as the court’s rulings are binding on all countries who have ratified the European Convention on Human Rights.
Comment
The moral here is use your own device for personal communication but not in company time.
