Right to monitor employee private messages

The European Court of Human Rights (ECHR) has recently ruled that companies can have the right to monitor the private messages of employees sent during work time through work related accounts or through property owned by the company.

The case involved a Romanian employee who had been using his work email account for private messages, against clear company policy. When challenged, he at first denied it. The employer then produced a long transcript of the private messages, proving both that the employee had breached the rule and that the employer had been monitoring his private emails. The employee was dismissed.

Having failed in his dismissal claim in the Romanian courts, the employee brought an action in the ECHR claiming that the dismissal was based on a breach of his right to respect for his private life under Article 8 of the European Convention on Human Rights.

The ECHR disagreed. It was reasonable for an employer to check that employees were performing their duties at work correctly in accordance with their contracts and when using company property. The breaches had occurred on a company email account set up for work purposes. The employer’s policies were clear. The monitoring, in this case, had been limited and proportionate in the circumstances.

However, it is important to note that the ECHR ruling does not give employers carte blanche to monitor employee messages. Proportionality and reasonableness are key.

The ECHR ruling applies to all countries that have ratified the Convention. Whether it results in a change in law in any particular country will depend on existing local rules. For instance, in the UK the monitoring of employee messages at work is already permitted and controlled by data privacy laws which will not be affected by the Court’s decision.

The main message to employers, in addition to complying with local privacy rules, is to ensure that the company’s policy on the personal use of company property and its right to monitor that use are clearly set out and communicated to employees.