The case in question is Barbulescu v Romania [2016].

The employee was an engineer and he had been asked to setup a Yahoo Messenger account which could be used by the company to respond to customer queries. There was a strict company rule that said that no employee could use the company fax, computer, telephone or photocopier for per- sonal use. However, Barbulescu breached that rule and used the Yahoo Messenger account to send personal messages to his girlfriend and brother.

The company accessed the Yahoo Messenger account, to monitor what customers were saying, and read several of his personal messages. In total, when transcribed the messages amounted to around 45 pages of text. Barbulescu was dismissed for breaching company rules.

The claim that Barbulescu made to the European Court of Human Rights was that his right to a private life had been breached. He lost his argument. The employer had accessed a work Yahoo Messenger account and was entitled to do so. This was not a breach of privacy. This ruling does not mean that an employer can now access an employee’s personal email account. The key point was that the employee was using a company email account to send personal messages.

So, what can an employer do? If the employer has a company policy which allows it to monitor company systems and states that personal use of systems is not allowed then it would be difficult for an employee to argue that any disciplinary action taken is unreasonable. However, for disciplinary action to be fair there would be a need to show that a policy had been breached. If there is no policy in place it would be difficult for an employer to justify any action. The message for employees is to adhere to company policies and not to breach those policies by sending personal emails from company accounts if this is not allowed. If employees break the rules they need to be aware that personal emails could be read, and it could result in disciplinary action being taken against them.