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Caution to be exercised by employers in monitoring employee communications

06 September 2017

The Grand Chamber of the European Court of Human Rights, on 5 September 2017, has handed down its judgement in Barbulescu v Romania concerning the decision of a private company to dismiss an employee after monitoring his electronic communications and accessing their contents.

Whilst it is common for employers to have in place policies covering the monitoring of employee communications, the Grand Chamber overturned the decision of the Chamber holding that there had been a violation of Article 8 (right to respect for private and family life, the home and correspondence) in the Company accessing the electronic communications in the way it had.

Mr Barbulescu, a Romanian national, was employed as an engineer in charge of sales at a private company. Mr Barbulescu had access to a Yahoo Messenger account which his employer instructed him to set up and manage to engage with customer enquiries. On 3 July 2007, the Company circulated a notice to all employees confirming that one employee had been subjected to disciplinary proceedings for using the internet, telephone and photocopier for private use, contrary to Company policy. The Company asked that all employees sign and return a copy of the notice to acknowledge acceptance of its contents. Mr Barbulescu signed the notice. Shortly after the circulation notice, Mr Barbulescu was called to a meeting with his employer at which he was told his Yahoo messages had been monitored and there was evidence he had used the internet for private use. Mr Barbulescu disputed these charges and was subsequently presented with a 45-page transcript of his personal communications with his brother and his fiancée, some of the messages being of an intimate nature. Mr Barbulescu challenged his employer’s decision in the courts, up to the Court of Appeal in Romania, before the issues were heard by the Chamber and Grand Chamber of the ECHR.

In determining the issues, the Grand Chamber noted that whilst it was questionable whether Mr Barbulescu had a reasonable expectation of privacy of communication; time spent on matters concerning private and social life in the workplace could not be reduced to zero. Even though the right to privacy may be somewhat restricted by Company policy, Article 8 continued to apply. The Grand Chamber also noted that the Company policy did not make any reference to the monitoring of employee communications, only that it was forbidden to use company computers and the internet for private issues.

The Grand Chamber considered that the national courts of Romania had failed to determine at what stage Mr Barbulescu was notified that his communications would be monitored and in what way. The Grand Chamber concluded that Mr Barbulescu only became aware of the extent of this monitoring when the circulation notice was issued, only a few days before he was summoned to a meeting with his employer. Therefore, at the time of sending the messages in question, Mr Barbulescu could not have been aware of the extent and nature of his employer’s monitoring, or the possibility that his employer could access his messages.

Dissenting opinion of six Judges of the Grand Chamber made reference to Mr Barbulescu’s disregard for the employer’s policy of accessing the internet for private use, and, the erosion of trust and confidence caused Mr Barbulescu’s false denial of his contravention of this policy during the meeting with his employer. The dissenting judges concluded that, on this basis, there had been no failure to protect Mr Barbulescu’s right to private life. The Romanian court had not struck a ‘fair balance’ between the employee’s right to a private life and the employer’s right to ensure the employee was complying with  company policy.

This case serves as a reminder that in the UK under the Data Protection Act there are guidelines in place for employers to follow if they wish to monitor employee’s email communications and internet use in the workplace.

To ensure adequate protection of an employee’s right to privacy, employers should consider:

  • Whether an employee has been notified that an employer will take measures to monitor communications.
  • When and in what format such notification has been given?
  • Has the extent of the monitoring and degree of intrusion been adequately explained to the employee? Simple monitoring of an employee’s inbox and outbox should be distinguished from an employer reading the content of the messages.
  • Is it justifiable to monitor employee’s communications by accessing their actual content? Is there a less invasive method available to an employer that does not intrude on the employee’s right to privacy?
  • What are the consequences for the employee of the employer monitoring communications in an intrusive manner?
  • Has appropriate safeguarding of the employee’s private life been put in place prior to the monitoring?

If you would like to discuss your Employment Handbook, and in particular, your policies on electronic communications and monitoring, please do get in touch with a member of the Employment Group.

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