Summary

The European Court of Human Rights (ECHR) has ruled that an employer was within its rights to read a worker’s Yahoo Messenger chat, including private messages, sent while he was at work. The decision binds all countries that have ratified the European Convention on Human Rights, which includes Britain.

Background

The employee, an engineer in Romania, was asked to create a Yahoo Messenger account in order to answer clients’ queries. He used it for private, as well as personal purposes, which was clearly prohibited under the company’s policy. In 2007, the engineer was informed that his chat had been monitored over several days, demonstrating that he had breached company rules by having private conversations in work time, and a transcript was produced which included private messages he had exchanged with his fiancée. The engineer was subsequently dismissed, and the matter progressed all the way to the ECHR to determine whether an employer was entitled to access an employee’s private messages, sent during office hours, or whether this was a violation of his right to confidential correspondence.

Decision

The Court held that Article 8 (right to respect for private life and correspondence) was engaged. However it held that the Romanian court was entitled to look at the evidence when considering the fairness of the dismissal. They also held that it was ‘not unreasonable that an employer would want to verify that employees were completing their professional tasks during work hours’. It found that the employer’s monitoring ‘was limited in scope and proportionate’ and that the engineer had not ‘convincingly explained why he had used the Yahoo Messenger account for personal purposes’.

Guidance for employers

Employers should not see this as a green light for liberal monitoring of all employees’ communications. Reasonableness is still important. It is apparent that the fact the company had accessed the messages in the belief that they contained professional communications, was a deciding factor. This particular employer had clear policies that were known to the employee. It may be difficult to justify intrusive monitoring where an employer allows for some degree of reasonable personal use of company IT systems. Accordingly, it is sensible to review your IT policies and ensure that they provide the most appropriate rights for your organisation.