Human Rights and Monitoring

Article 8 of the European Convention on Human Rights (a right to respect for a private life, family and correspondence) is engaged when an employer accesses an employee’s personal messages on a work computer and uses this as evidence to justify a dismissal. Despite this, a recent judgement of the European Court of Human Rights has held that there are circumstances where Article 8 may not be breached.

Where an employer’s actions in accessing such message are limited solely to establish whether its policy on computer use has been breached, the action can be deemed proportionate.

The case in question involved an employer in Romania who accessed an employee’s Yahoo Messenger which he had been asked to use for work purposes. The employee claimed that the service had only been used for work related purposes; however, the employer then confronted him with a transcript of his messages with some personal content. The employee alleged breach of the Romanian Criminal Code (equivalent to the Human Rights Act in the UK) and the employer dismissed the employee.

The employee brought a claim in a Romanian County Court concerning his dismissal, and stating that the employer had breached his right to respect for correspondence. His claim was rejected. The employee made a complaint to the European Court of Human Rights stating that the dismissal was in breach of Article 8. The European Court of Human rights found that although Article 8 was engaged, his rights had not been violated due to the fact, amongst a lengthy list of reasons, that the employer had a clear policy in place preventing computer use for personal reasons and the access did not go any further than to establish whether the messages were for solely work related use; as well as the fact that the dismissal was not due to the content of the messages.

For employers in the UK, it is important to note that a dismissal in these circumstances for breach of the computer policy, where usage was infrequent, no warning had been given and no damage to the employer could be established, would likely be unfair. The judgement does, though, indicate that, where an employer has in place a computer policy which expressly states that work computers cannot be used for any personal purposes, the employer may be able to access messages to establish evidence that the policy is being breached, without causing a breach to the employee’s Article 8 rights.

Employers should note that obtaining express consent to access messages from employees is best practice. The Information Commissioner advises employers that they should encourage employees to mark confidential messages as ‘private’ or ‘personal’ for the avoidance of doubt. The case highlights the importance of warning employees where messages are monitored. Where no warning is given, the employee would have a reasonable expectation of privacy.