Can the boss now read your messages at work?

Published: 14th Jan 2016

In brief

Claim

A court decision gives employers the right to check all the messages an employee sends from company computers.

Conclusion

The decision was that privacy rights don't rule out employers checking whether staff are sending personal messages on work computers, in particular circumstances. It doesn't directly change UK law, which already allows some monitoring.

"Bosses get green light to snoop on all of your messages"

Scottish Daily Mail, 14 January 2016

"Not a green light for businesses to start snooping on employees"

Financial Times, 14 January 2016

On 12 January, the European Court of Human Rights decided that the employers of a Romanian man who checked messages he'd sent at work hadn't violated his right to privacy.

It's not obvious that this makes an immediate difference to employees at their desks in Blighty.

Sacked for sending personal messages at work

In 2007, Bogdan Bărbulescu's Yahoo Messenger account was examined by his bosses to check his claim that he hadn't used it for personal purposes—which was against the company's rules.

He was sacked, challenged this in the courts of Romania, and lost. He then took his argument to the human rights court in Strasbourg.

Those judges concluded that "it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours".

They said that it wasn't the content of the messages that led to the employee's dismissal. It was the fact that they weren't about work that was Mr Bărbulescu's undoing.

Does the verdict change the law in this country?

The BBC originally reported that decisions of the human rights court "binds all countries that have ratified the European Convention on Human Rights, which includes Britain".

But the Convention says that countries "undertake to abide by the final judgment of the Court in any case to which they are parties" (our emphasis).

The only country that was a "party" to this case was Romania. It's bound to follow the court's decision (which in this case involves doing nothing, as the human rights judges agreed with the Romanian courts).

The UK's Human Rights Act says that judgments of the human rights court must be taken into account by our courts. This isn't quite the same as them being legally binding in this country.

Things would have been different if this were a ruling from the European Union Court of Justice, as EU law trumps UK law if there is a conflict. The human rights court isn't an EU body. It's part of the Council of Europe, which has 47 members to the EU's 28.

This particular case might be unusual

British judges might still be influenced by this decision. Experts disagree, as they often do, about its importance.

Court decisions may be of immediate importance, or significance down the line. They may simply be in line with what judges have said before.

Sometimes a case sets a precedent that would be followed if that exact situation came up again, but won't necessarily be followed if the facts are merely similar.

For example, the human rights court said in Mr Bărbulescu's case that "his complaint before the Court is limited to the monitoring of his communications within the framework of disciplinary proceedings".

It also noted that "the employer's monitoring was limited in scope and proportionate".

There was no violation of privacy rights in these circumstances. That doesn't mean that blanket surveillance when there's no particular reason to do so would be acceptable.

The judges also stressed that personal use of office computers were specifically forbidden by Mr Bărbulescu''s firm. This made the case different from previous ones where employees were successful in their privacy complaint. In those cases, the personal use of office facilities was "allowed or, at least, tolerated".

One of the seven judges came to a different conclusion on the case, partly because he disagreed that this was relevant. He said that the ban on personal communications didn't mention "an Internet surveillance policy being implemented in the workplace". But the other six overruled him.

Finally, the court noted that Mr Bărbulescu had stated in writing that his account contained only messages about work. Taking him at his word, his employer wouldn't have expected to find any sensitive personal information when it looked at his account.

Again, if this weren't the case, judges might take a different view.

Should I be worried about being watched in the office?

An employment law specialist at the technology and digital media law firm Kemp Little told us that the outcome of Mr Bărbulescu's case "is actually broadly in line with existing English Employment Tribunal decisions in this area".

The official UK government website already tells readers that "employers might monitor workers. This could be done in various ways, like… checking a worker's emails or the websites they look at".

The conciliation service Acas advises that employers might keep an eye on "excessive private use of e-mails, internet use etc", but that workers should be told about it.

As our legal advisor, Joshua Rozenberg, said on BBC's PM programme last night, employees worried about being monitored should check their contract. If it or company policy bans you from using work computers to send personal messages, you're less likely to be able to plead privacy.


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