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A landmark decision today from the European Court of Human Rights (ECHR) has found that an employer who dismissed an employee for using an instant messenger account at work for his personal communications broke European Human Rights laws guaranteeing the right to privacy.

The employee, who was employed as an engineer at a sales company, used his employer’s instant messaging account to send personal messages to his fiancée and his brother. Although he accepted that his employer legitimately prohibited him from using their resources for personal matters, he argued that his employer had breached his right to privacy by reading the messages and by not informing him that his communications might be monitored.

The ECHR agreed in by a vote of 11 to 6. It found that the accessing of the messages was a breach of Article 8 of the European Convention on Human Rights, which guarantees the right of respect for private and family life, home and correspondence.

The judgment of the ECHR cannot create new laws but its judgments are used by UK courts in interpreting national law that derive from European law.

The message for UK employers is that although monitoring communications of employees sent from the employer’s equipment, is and continues to be, acceptable, they must take care to ensure that when they find personal employee communications these are not reviewed unless it is legitimately necessary from a business perspective. It is particularly important that relevant managers are aware of this. It must also be made crystal clear to employees that monitoring will take place (not just that private use is prohibited). It is also a timely reminder to employers to review electronic usage policies to ensure that they are compliant with the law and act to promote sensible use by employees.

If you have any questions regarding this topic or any employment issue, please contact Partner, Alexandra Carn, or any member of the Edwin Coe Employment team.

Edwin Coe LLP is a Limited Liability Partnership, registered in England & Wales (No.OC326366). The Firm is authorised and regulated by the Solicitors Regulation Authority. A list of members of the LLP is available for inspection at our registered office address: 2 Stone Buildings, Lincoln’s Inn, London, WC2A 3TH. “Partner” denotes a member of the LLP or an employee or consultant with the equivalent standing.

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