Employers’ Right to Access Correspondence

A decision of the European Court of Human Rights (ECHR) appears to endorse that an employer can monitor a staff member’s private correspondence.
 
The applicant in the case launched an action against Romania at the ECHR, alleging that the domestic courts had failed to protect his rights under Article 8 of the European Convention on Human Rights. (The right to respect for private and family life, home and correspondence).
 
The applicant had been dismissed from his post as an engineer specialising in sales for a private company. Internal Regulations were clear that,
 
“It is strictly forbidden to disturb order and discipline within the company’s premises and especially ... to use computers, photocopiers, telephones, telex and fax machines for personal purposes.”
 
Having monitored his Yahoo Messenger account, (which they had asked him to set up to answer client enquiries), for about a week, the employer terminated his employment having found evidence of communications of a personal nature with his fiancé and brother.
 
At the court of first instance and subsequently at the Court of Appeal his claims were rejected on the following grounds:

• The employer had complied with the Labour Code dismissal provisions.
• The applicant had been informed of the appropriate internal regulations.
• That checking the correspondence was the only way of appropriately addressing his defence that he had only used the Yahoo Messenger account for business purposes.
• The actions of the employer were reasonable.

 
The ECHR, by a majority of 6 to 1, concluded that the domestic courts were correct in finding no breach of Article 8 rights:

• The conclusion reached by the domestic courts was legitimate as the information accessed had been undertaken to confirm the applicant’s assertion that the correspondence was part of professional activity.
• It was not unreasonable for an employer to check the activities of an employee during office hours to ensure that they are undertaking professional tasks.
• The search did not include other data and documents on the applicant’s computer and therefore it was limited in scope and proportionate.
• There was no convincing argument put forward by the applicant why he had used the account for personal matters.

 
Clearly this decision does not give carte blanche to employers to intrude on the privacy of their employees, but it does appear to emphasise that such monitoring is allowable where there is a policy that is properly communicated and such action is proportionate.
 
(Case of Bărbulescu and Romania - (Application no. 61496/08), ECHR, 12th January 2016)
 
From Guest Blogger – Terry Geater

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