The European Court of Human Rights has ruled that an employer was within its rights to sack a Romanian engineer after discovering that he had used a work Yahoo messaging account to correspond with his fiancée.
In the case, the European Court of Human Rights (ECHR) decided there was no violation of an employee’s right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) where an employee had been dismissed for using the company’s internet for personal purposes during work hours. While the employee’s Article 8 right had been engaged, the employer’s monitoring of his communications pursuant to workplace rules had been reasonable in the context of disciplinary proceedings. The Romanian courts had acted appropriately in balancing the employee’s rights against the interests of his employer.
B was employed in Romania as an engineer in charge of sales. His employer asked him to create a Yahoo Messenger account in order to respond to client enquiries. The employer informed B his Yahoo Messenger communications had been monitored for a period of about a week and that the records showed he had used the internet for personal purposes, contrary to internal regulations. When B denied this, his employer provided him with a transcript of messages he had exchanged with, among others, his fiancée and brother, some of which related to personal matters. B’s employment was terminated soon after for breach of the company’s regulations.
B argued his employer had infringed his right to correspondence protected by the Romanian Constitution and had breached the Criminal Code. The Romanian County Court dismissed his complaint. It said his employer had complied with the Labour Code provisions on disciplinary proceedings and that B had been informed of the employer’s regulations prohibiting use of company resources for personal purposes. Following an unsuccessful appeal, B applied to the ECHR arguing the employer’s conduct had disproportionately infringed his Article 8 rights.
The ECHR accepted Article 8 was engaged on the facts of the case because the employer had accessed B’s Messenger account and used the transcripts of his communications as evidence in the litigation. However, it held – by a majority – that there had been no violation of Article 8. It stated that although the purpose of Article 8 is essentially to protect an individual against arbitrary interference by the public authorities, it does not compel the State to abstain from such interference. The Court had to examine whether Romania, in the context of its positive obligations under Article 8, had struck a fair balance between B’s right to respect for his private life and correspondence and his employer’s interests. In the ECHR view, it was not unreasonable for B’s employer to seek to verify that employees were completing their professional tasks during work hours. In addition, B’s employer had accessed his messaging account thinking that it contained client related communications only. B’s disciplinary breach – namely, his use of company resources for personal purposes – had been established. It was clear from the Romanian courts’ judgment they had used the transcript of B’s communications only to the extent that it proved that breach. The ECHR decided the Romanian courts had struck a fair balance between B’s rights under Article 8 and the interests of the employer.
Our conclusion is that this ruling is not a green light for employers to pry without justification into their employees’ personal messages. Any investigation or access of electronic data must be handled sensitively and comply with company policy, which should be clearly stated and communicated to staff.
Tom Redfern
