Data protection and privacy

In a recent decision of 12 January 2016, the European Court of Human Rights (ECHR) ruled that an employee’s right to privacy has not been violated if the employee is dismissed as a result of monitoring by the employer of the employee’s e-mails and chat messages sent during working hours.

At the request of the employer, an employee created a Yahoo Messenger account so that he could respond to clients’ enquiries. According to the employer’s internal policy, the company’s assets and computers are to be used only for professional purposes. 

Monitoring of the Yahoo account revealed that the employee had frequently used this account during working hours to conduct private conversations via e-mail and chat messages. 

As a result, the employer terminated the employee’s contract.

The employee contested his dismissal because he considered that his right to privacy had been violated. 

The ECHR ruled that an employer has the right to verify, within the framework of its disciplinary powers, that its employees carry out their professional tasks during working hours. 

One way of doing this is by monitoring the employee’s e-mail and chat accounts. In the present case, the employer assumed that the account contained only professional messages, since that was the express purpose for opening such an account and also since the employee had denied using his professional account for personal purposes. 

However, the ECHR’s decision does not give carte blanche to the employer to monitor its employees’ e-mail and chat messages.   

Interference with an employee’s private life always has to comply with the principles of legality, purpose and proportionality. 

Also, Belgian employers should, in particular, take into account CBA no. 81 of 26 April 2002. 

For more information, see: ECHR 12 January 2016, no. 61496/08, Barbulescu/Romania .

> Action point
If you are thinking of monitoring your employees’ electronic online communication data, please check that this monitoring complies with the principles of legality, purpose and proportionality. 

Ensure that you have a clear Internet and ICT policy, in compliance with CBA no. 81 of 26 April 2002.