Posted by John North, Partner
Do employers have the right to snoop through their employees’ messages?
You have no doubt been bombarded by a flurry of articles stating that employers have been given the right to snoop through the entirety of employees’ private messages, but how much of this is true?
Following the European Court of Justice decision in the case of Bogdan Bărbulescu on 12 January, Charlotte Newlyn in our Dispute Resolution team explores the truth behind the panic and whether there will be any changes at all.
Mr Bărbulescu was fired in 2007 after his bosses found he had been emailing his fiancée and brother during work hours. His case progressed through the courts and this month the European Court of Justice held that it was “not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours.” The ECJ went on to decide in favour of the employer, agreeing that they should be able to monitor correspondence sent using work-provided means during work hours.
Cue the flood of legally incorrect and panic-inciting articles, and the desperate tapping of thousands of employees deleting all their messages. Newspapers and websites have informed their readers that their employers could now legally look through every WhatsApp, text and email message they’d ever sent during work hours.
The legal consequences
Following this decision, technically, your employer could look through your WhatsApp or text messages. However, this is only true if the number or email from which you are corresponding was set up for the purpose of client communication, such as a work email, like Mr Bărbulescu was using, or a work mobile.
The crux of the above case was that the Yahoo account Mr Bărbulescu was using to chat with his family members had been solely set up for him to answer client queries and was never intended for personal use.
Although submitted by Mr Bărbulescu, this was not a breach of his Article 8 human right to private correspondence as his employer had only revealed the messages’ existence and topic, not their content. The ECJ held that the Romanian domestic court had therefore struck the appropriate balance between Bogdan Bărbulescu’s human rights and his employer’s interests in dismissing this submission.
Still one more barrier
You will no doubt have also been informed that this decision comes into automatic effect as we are part of the EU and have ratified the European Convention on Human Rights. This, again, is untrue.
Under Section 2 of the Human Rights Act 1998 the only duty is for our courts to “take into account” Strasbourg case law: in some instances, these decisions have been downright ignored. If fact, bosses across the UK are already being urged not to indulge in invasive surveillance by reading their employees’ private messages. For instance, the European Trades Union Congress said the judges’ decision should not be seen as a “green light… to start snooping” on staff. And Institute of Directors director general Simon Walker said: “Employees should not be subject to Stasi-style surveillance at work.”
Have an opinion to share about the decision? Please leave us a comment or contact Charlotte Newlyn.
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