Legal

Human rights court rules it’s OK for employers to read the personal messages of workers

Eloise Keating /

 

The European Court of Human Rights has ruled a Romanian employer was within its rights to access and read private messages sent by one of its workers.

The case dates back to 2007, however, the judgment handed down by the court on Tuesday this week is being interpreted by some as having broad implications for how businesses manage employees using internet messaging platforms while at work.

Bogdan Mihai Barbulescu was employed as an engineer with a private company in Romania between August 2004 and August 2007.

Prior to his case reaching the European Court of Human Rights, it had been considered by multiple courts in Romania.

The court heard during the course of employment, Barbulescu was instructed by his employer to create a Yahoo Messenger account to use at work to respond to client enquiries.

However, on July 13, 2007, he was informed that his Yahoo Messenger communications had been monitored between July 5 and 13 and the company said the records showed he had used the internet for personal communications with his brother and fiancee.

Barbulescu responded to his employer in writing saying that he had only used his Yahoo Messenger account for work purposes, but the company terminated his employment on August 1, 2007, for breaches the company’s policy about using company resources for personal purposes.

Romanian courts originally ruled the employer had acted reasonably and that monitoring the online conversations was the only way the company could determine if Barbulescu had breached its internal policies.

However, Barbulescu took his case to the European Court of Human Rights on the grounds that his dismissal was based on a breach of his right to privacy.

He also argued before the court that earlier proceedings before the Romania courts were unfair.

Bu a verdict of six votes to one, the European Court dismissed Barbulescu’s case, finding it was not “unreasonable” for the employer to attempt to verify that he was completing his work during work hours.

“The employer acted within its disciplinary powers since, as the domestic courts found, it had accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate,” the court said.

“The court sees no reason to question these findings.”

 

Could the same thing happen in Australia?

 

Workplace lawyer Peter Vitale told SmartCompany “the basic rule in Australia is that an employer has a right to monitor communications which are engaged through IT systems owned by the company of employer”.

“In that sense, I think the default decision is that the employees don’t have a right to privacy in those circumstances,” he says.

Vitale says the issue of monitoring employee communications at work has been considered in several reviews of the Privacy Act, however, a right to employee privacy has not yet been legislated for in Australia.

However, Vitale says employers in New South Wales are required to provide advance notice to employees if their computers are to be monitored under the state’s Workplace Surveillance Act.

“More generally, it’s sensible for employers who want to engage in monitoring activity and perhaps disciplinary action on the basis of that monitoring, to have a clear policy in place about what and why and the consequences,” he says.

Andrew Douglas, principal in workplace relations at McPherson Kelly, told SmartCompany it is essential for employers to have policies and procedures in employment contracts that cover the use of company provided internet and networked devices.

“If the policies and procedures or employment contracts prescribe that the internet, mobile phones and computers are the property of the business, the employer is entitled to access the information on those,” he says.

Douglas also says employers in New South Wales in particular should ensure the correct policies and procedures are in place because of the state’s legislation governing surveillance in the workplace, adding a failure on behalf of the company to specify its policies could be “fatal” for that employer. 

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Eloise Keating

Eloise Keating is the editor of SmartCompany. Previously, Eloise was news editor at Books+Publishing, the trade press for the Australian book industry.

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