Company's check of employee's private communications at work was legitimate, says EU human rights court

The ECHR said that a Romanian company had not infringed the privacy rights of an engineer it employed when it had accessed personal communications the engineer had sent during work time via Yahoo Messenger.

The engineer had registered a Yahoo Messenger account at his employer's request, according to the Court, but the company terminated his contract of employment when it found he had used the service for personal purposes during work hours in breach of company policy.

Privacy law expert Annabelle Richard of Pinsent Masons, the law firm behind Out-Law.com, said that some of the media headlines on the case were "dangerous" because they had inferred that employee privacy rights did not apply in the work environment. That is not the case, she said.

The ECHR ruled that the Romanian courts had struck a "fair balance" in assessing the engineer's right to privacy and the interests of the employer when determining that the company had not infringed on the engineer's privacy rights by monitoring his personal communications. It said that there had therefore been "no violation of Article 8" of the European Convention on Human Rights which provides for people's right to privacy.

The Court accepted that the employer had accessed the engineer's Yahoo Messenger account by relying on "disciplinary powers" set out in Romanian employment law and that it had done so "on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate".

The Court also said that the employer's monitoring activities had been "limited and scope" and were "proportionate". This is because the company had only examined the communications on the engineer's Yahoo Messenger account and not "the other data and documents that were stored on his computer".

"While it is true that it had not been claimed that the [engineer] had caused actual damage to his employer, the Court finds that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours," the ECHR said in its ruling.

The judges at the ECHR who heard the case were not unanimous in their decision. One judge issued a dissenting opinion. Judge Paulo Pinto de Albuquerque criticised the employer for not ensuring that copies of the transcripts of the messages the engineer had sent on Yahoo Messenger were not shared with his colleagues.

"Even if one were to accept that the interference with the applicant’s right to respect for private life was justified in this case, which it was not, the employer did not take the necessary precautionary measures to ensure that the highly sensitive messages were restricted to the disciplinary proceedings," the judge said. "In other words, the employer’s interference went far beyond what was necessary."

Richard of Pinsent Masons said there is "a mountain of existing regulations and case law that supports employee privacy rights in the workplace" that companies need to be aware of despite the reporting of this ECHR ruling.

"Those privacy rights are not absolute, however, and as this case shows they can, on occasion, be trumped by the interests being pursued by employers," Richard said. "The ECHR's judgment, though, does not present a green light to companies to trawl through personal communications of staff."

"The ECHR's decision was couched in the context of disciplinary proceedings where the employer checked an employee's communications to verify whether a messaging tool was being used for professional purposes. The court also explained that the company had not gone beyond monitoring the employee's communications when intruding into the man's privacy by looking at other data and documents on his computer. Doing so may have been classed as a disproportionate privacy intrusion and could have led to a different outcome in this case," she said.

"Although the judgment confirms that businesses are entitled to check whether staff are completing work tasks during working hours they should heed comments made by judge Paulo Pinto de Albuquerque in his dissenting opinion. Employees are entitled to fair warning that their communications might be monitored. Employers should draw up internal policies that carefully explain the circumstances in which monitoring might happen and what important concepts like 'reasonable use' of work computers for personal purposes mean in practice, as well as what sanctions will apply for breach of those conditions," Richard said.