ECHR gives the green light to employers to monitor personal messages

This case revolved around an engineer in Romania who was dismissed in 2007 for breaching his company’s zero tolerance policy of personal internet use during working hours by using Yahoo Messenger during to chat to family and professional contacts. His employer monitored his communications believing that they were accessing a work account and presented him with 45 pages of messages not related to work. He asked the European Court of Human Rights to rule that the company had breached his right to confidential correspondence by accessing his messages.

The ECHR found that it was not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours. They noted that the employer legitimately accessed the messages in the belief that they related to professional communications.

However, the ECHR made it clear that this decision does not give employers free rein to carry out unregulated monitoring of employees’ private messages. It expects employers to enact policies that define the information that can be monitored, as well as when and how that could happen.

They stated: “If the employer’s internet monitoring breaches the internal data protection policy or the relevant law or collective agreement, it may entitle the employee to terminate his or her employment and claim constructive dismissal, in addition to pecuniary and non-pecuniary damages.”

Comment
The decision, handed down on 12 January 2016, binds all countries that have ratified the European Convention on Human Rights, including the UK.

The company had a zero tolerance policy on using IT resources for personal matters, whereas many employers permit some use of IT for personal use during the working day. The case highlights that it is imperative to have a clear policy defining the circumstances in which an employer will monitor personal usage of IT during working hours, and that this is consistently applied.