Articles | Don't snoop on staff correspondence

Christian Meredith reports on a successful appeal in the European Courts regarding privacy in the workplace.

Christian Meredith

Christian Meredith

In February 2016 we reported on a European Court of Human Rights (ECHR) decision regarding privacy in the workplace (read more here). The decision held that a Romanian employer acted lawfully when it monitored an employee’s private Yahoo messenger account.

Following an appeal to the Grand Chamber of the ECHR the decision has been successfully overturned by the employee. This is a significant move, not only due to rarity of such appeals, but also due to the implications of the decision on greater privacy rights.

The case concerned a Romanian engineer who was asked to create a Yahoo messenger account for the purpose of responding to client enquiries. The employee’s messages were monitored by the employer. The employee used the account for personal reasons and some of the messages were of an intimate nature and as a result he was dismissed. Originally the ECHR held that the employee’s right to privacy had not been infringed despite his messages being read and examined.

The employee appealed to the Grand Chamber of the ECHR. The Grand Chamber upheld the appeal by a majority and found that the Romanian courts had not adequately protected his right to respect for his private life and correspondence, and the balance between the competing interests of the parties involved was not equal.

The Grand Chamber also found that the national court had failed to determine whether the employee had received prior notice from his employer that his messages may be monitored. The employer also failed to inform the employee of the extent of the monitoring or the degree of intrusion into his private life.

The reversal of the original decision is a return to a more orthodox stance but employers should note that this decision does not fully champion total privacy for employees. It was of crucial significance and a major factor in the reversal of the decision that the employee had not been expressly told that his personal messages could be monitored at any time. Another relevant factor was the failure of the courts to properly consider the justification for such strict monitoring.

It is crucial that all employers ensure that they have a clear monitoring policy in place that sets out not only that monitoring may take place, but also the extent of such monitoring and under what circumstances it may occur. A failure to have properly advised the employee of such monitoring could render it unlawful.