Company surveillance of correspondence and e-mails and subsequent dismissal

The European Court of Human Rights has handed down a groundbreaking judgment in which it considers that there is no violation of the right to respect for private and family life when the company monitors correspondence and subsequently dismisses the employee.

The judgment of 12 January 2016 refers to a case in which a worker was dismissed by his private company for having used, for personal purposes and during working hours, the company's internet accounts, in contravention of the internal regulations which did not allow the use of company resources for private purposes.

The Court decided that although the employee's private life and correspondence had been affected, the surveillance of his communications by his employer, in the context of disciplinary proceedings, was reasonable and that there had therefore been no breach of Article 8 of the European Convention on Human Rights.

The judgment was joined by the separate opinion of Judge Pinto de Albuquerque, who dissented from the majority and thought that the Court had missed an excellent opportunity to develop its jurisprudence in the field of the privacy of employees' internet communications. In his view, new technologies make it easier for the employer to intrude into the employee's life and more difficult for the employee to detect such intrusion, a risk that is exacerbated by the innate inequality that is inherent in any employment relationship. The use of the internet in the workplace must be guaranteed by transparent internal regulation, a coherent enforcement policy and a proportionate enforcement strategy on the part of employers, factors which it considers absent in the present case, where the interference with the applicant's right to privacy has resulted in a dismissal decision, made on the basis of a measure of surveillance of the employee's internet communications adopted ad-hoc by the employer, with drastic indirect effects on the employee's social life.

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