The European Court has held that it may be appropriate and proportionate for an employer to view an employee's personal email/messenger account. The Court had to balance Article 8 of the ECHR (The Right to a Private Life) with an employee's obligation to an employer that "it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours" and provided that the monitoring was limited in scope and proportionate, it was free to monitor an employee's email/messenger account.
On the facts of the case Mr B was invited by his employer to set up a Yahoo messenger account to communicate with the employer's clients whilst he was at work. Mr B also communicated with his family, friends, and his fiancé.
The employer examined a string of messages within the Yahoo messenger account and discovered the personal and intimate messages and dismissed the employee for breach of its IT policy. They placed reliance on the fact that the messenger account contained was set up to facilitate client communications. The employer limited itself to not looking at any other data or documents on Mr B's computer.
The Court found on the facts that it was proportionate for the employer to view the messenger account because it believed that it should have been used for client related communications.
Whilst this case has produced much publicity and in some sections of the media it has been presented as giving an employer carte blanche to look at employee's personal email accounts. We do not believe that the facts of this case do give the employer that scope. It must be remembered that it was at the employer's behest that the messenger service was set up by the employee for the purpose of conducting employer business (the facts of this case go back some 10 years!)
Under these circumstances the Court found that it was proportionate for an employer to review the messenger account as the account had been set up for business purposes only and they could see that it was being used for private purposes for a significant part of the working day. This then overrode the employee's right to a private life under Article 8 of the ECHR. This case does not give an employer the right to view private email or a web chat account. However, if an employer could see that its devises or computer systems were being used for private purposes, they could impose a disciplinary sanction for breach of its IT or email policy. But it could not delve into the private email or web chat accounts and read the individual messages.
What this case does not do is give the employer a free reign to demand inspection of employee's personal email accounts unless for instance it suspected that an employee had been using a personal email account to breach employer confidential information and it could obtain an Order from the Court by way of an Injunction to examine the employee's email account if there was good evidence that it had been used in breach of the employee's obligation of confidentiality.
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