April 2016 - Luxembourg Employment News

Employers reading employees’ emails are not breaching their privacy

We have already analysed employees’ privacy rights issues from a national perspective in our newsletters of 27 March and 29 May 2015.

This issue has recently been dealt with by the European Court of Human Rights (“ECHR”). ECHR has ruled that a company in Romania did not breach the privacy rights of an employee when it monitored and recorded his professional Yahoo Messenger account (judgment n° 61496/08, 12 January 2016, « Bărbulescu v. Romania »).

In this case, the employee was dismissed for using the company’s Yahoo Messenger account for personal purposes, which infringed the company’s internal regulations. In fact, the company’s internal regulations ruled explicitly that it was forbidden to use the electronic devices of the company for personal purposes (computer, printer, phone, etc.). Furthermore, the Yahoo Messenger account was created at the initiative of the employer to allow employees to discuss work related questions with clients.

The employee affirmed to only have used his Yahoo Messenger account for professional purposes. Thus, the employer presented him with a 45 page transcript of messages he exchanged with his brother and fiancée during working hours from his work computer. These conversations contained, in particular, private information about his health and his sexual life.

Pursuant to his dismissal, he introduced a claim before the ECHR against his employer for breaching his human right to privacy.

The ECHR concluded it was “not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”. Moreover, according to the ECHR, the employee should have known that his communications may be monitored by his employer because internal regulations forbid the use of the electronic devices for personal reasons but also because the Yahoo Messenger account was created for professional purposes at his employer’s request. Furthermore, the employee’s denial that he had used this account for personal reasons has left the employer with no choice but to analyse his communications.

The ECHR established that the employer had accessed the communications within its disciplinary powers and in the belief that they would contain exclusively professional messages.

Thus, the ECHR concluded, in order to rule that the employer did not breach the European Convention for Human Rights (the “Convention”), that national jurisdictions had fairly balanced the right of the employee with respect to his private life and correspondence in accordance with article 8 of the Convention and the legitimate interests of his employer.

Even if this judgment shed light on the issue, it appears that the frontier between work and personal life is more and more delicate to apprehend due to the ceaseless development of new technologies.

Indeed, more and more companies allow employees to use their professional devices for personal reasons (access personal emails, calls, texts, etc.) while others allow employees to use their personal devices for professional purposes (“bring your own devices”).

Facing this growing issue for the employer and employees to identify the limit between professional and personal life, it is of relevance to rely on the limits set in internal regulations of the company as in this case, which have to precisely include these new issues.