Employers can read private messages

Lawyers have offered reassurance in the wake of a Strasbourg ruling on private messages sent at work.

The European Court of Human Rights ruled, in Barbulescu v Romania (App. 61496/08), that employers can read personal messages sent by employees at work, whether on email, WhatsApp, Facebook or other services. Mihai Barbulescu, a Romanian engineer, was dismissed for making private use of his employer’s Yahoo Messenger account during work hours and in breach of company rules. He had been notified that his communications could be monitored. The court rejected argument that his Art 8 rights had been breached, finding that a fair balance had been reached between his right to respect for his private life and correspondence and his employer’s interests.

Makbool Javaid, head of employment law at Simons Muirhead and Burton, says: “Some reports in the media that this judgment gives the green light for an employer’s ‘snooper’s charter’ are wide of the mark.

“This case is fact specific and the bottom line is that Art 8 did apply, but it was proved that in the circumstances the right could be restricted.”

Nick Hawkins, solicitor at Stewarts Law, says: “The decision has caused something of a stir, with it being suggested in some areas that this has given employers carte blanche to rummage through employees private communications. It has not.

“It is not new that employers are able to access their employees’ private storage devices to retrieve their confidential material, in an effort to protect their business interests.”

Kathryn Dooks, employment partner at Kemp Little, says the decision is“actually broadly in line with existing English employment tribunals decisions in this area”.

Sarah Rushton, employment partner at Moon Beever, says: “There is a common misconception that employees have an absolute right to privacy at work.

“However, employers can legitimately review private emails sent over their workplace systems if appropriate safeguards are put in place. An employer may have a genuine concern that its systems are being abused, either by excessive use for private purposes or for nefarious reasons. The moral of the story is for employers to have appropriate policies in place for dealing with this.”