In its judgment released last week, the European Court of Human Rights (ECHR) have dealt with a case, when an employee was dismissed for using an instant messaging platform for personal means during working hours. The access to the respective Yahoo Messenger account was only permitted for professional purposes, via the employer's IT tools. Importantly, private chat conversations were pursued in breach of the company's internal regulation.

The main question raised by Bărbelescu v Romania case was whether or not, the employer breached Article 8 (1) of the European Convention of Human Rights (i.e. right to respect for private life and correspondence) by looking at the chat logs of the employee.

The Court concluded that no violation of Article 8 was committed. The key explanation: the employee insisted that he was not using Yahoo Messenger but for professional purposes, and the employer accessed his account in this belief.

Carte blanche or monitoring with limitations only?

One giving credence to recent media headlines could believe that employers, from now on, have free rein to check workers' private e-mail and chat messages. We are here to alert you that, contrary to this hint, the judgment does not constitute a blanket right for employers to monitor workers' private exchanges online.

Now, you might be interested to know, under what conditions employers can lawfully monitor their employees' private communication.

It is in the company's legitimate interest to verify that employees are dedicated to their professional tasks during office hours. By checking online activity, employers can easily provide proof of excessive time spent by their employees with personal issues or on non-work-related websites, including social media.

Therefore, upon certain circumstances, employees' privacy at the workplace may be restricted by the employer. In such cases, the employer is bound by a general proportionality requirement also specified by the Hungarian Labor Code[1]. Clandestine monitoring procedures are unlawful; the employer shall provide information regarding the technical tools applied for such purpose in advance, but the employer has no obligation to inform workers regarding specific checks. Other important principle is that the employees' private life cannot be monitored. Therefore, if the private nature of a message can be assumed, the employer is not entitled to access the content sent and received by the employee using the computer device placed at his disposal for his work, even if the personal use of corporate IT equipment had been forbidden.

It is crucial to underline that lack of appropriate internal policy would probably lead the ECHR to a different conclusion in the Bărbelescu v Romania case. Without such internal regulation, monitoring of the employee's private messages was likely to be considered unlawful, as in the absence of prior notice regarding monitoring, an employee has a reasonable expectation of privacy. Likewise, in the case at hand, the employee used the company's messenger account instead of a private mailbox which strengthened the company's position.

Take away for both parties

This ECHR decision does not overrule applicable laws and jurisprudence prevailing on the monitoring of employees' electronic communications in the workplace: in principle, employees do have a right to privacy at work.

Key conclusion for employers:

  • Implement effective policies setting rules on the use of corporate IT equipment, internet, e-mail and social media (e.g. express your standpoint on complete ban, limited or full access for private use),
  • Make sure your employees are aware of such policies,
  • Be transparent on the possible extent and purpose of monitoring,
  • In case of a breach, act proportionately,
  • Make sure that evidences you intend to provide to the court are admissible.

Key conclusion for employees:

  • Be sure that you understand internal policies and you respect the rules,
  • Use personal account to send private e-mails, and preferably do it from your own mobile device,
  • Always indicate private nature of the communication (tag /create labels and groups/ mark e-mails as personal).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.