Monitoring of employees' personal communications at work

Barbulescu v Romania

Where an employer had a ban on personal use of company equipment and an employee denied using an e-mail account for personal reasons, it was a breach of his right to a private life for his employer to access that personal account to disprove what he was saying.

Background

Mr Barbulescu was dismissed for sending personal messages on his Yahoo Messenger account during working hours. His employer had a policy which said no company equipment was to be used for personal purposes. It also had a policy that all emails on its system might be monitored but there was a dispute between Mr Barbulescu and his employer about whether or not he had been told about the employer’s policy of monitoring all emails.

His employer claimed that only after he had denied sending personal emails in work time did they access his Yahoo Messenger account to verify this. His employer said that, based on his denials, they had accessed Mr Barbulescu’s private Yahoo Messenger account and discovered that he had indeed been sending personal emails during work time and dismissed him. Mr Barbulescu claimed that this was an unjustified breach of his right to privacy under article 8 of the European Convention on Human Rights. The Romanian courts dismissed his case holding that his employer’s actions were reasonable and that monitoring his communications had been the only way of establishing whether there had been a disciplinary breach. Mr Barbulescu took his case to the European Court of Human Rights (ECHR).

In a Chamber judgment the ECHR held, by six votes to one, that there had been no violation of art.8 of the Convention, finding that the Romanian courts had struck a fair balance between Mr Barbulescu's right to respect for his private life and correspondence under art. 8 and the interests of his employer.

Rather than focusing on the reasonable expectation of privacy, the ECHR distinguished previous cases by emphasising that the employer’s disciplinary code expressly prohibited any non-professional use of workplace equipment and therefore Mr Barbulescu’s employer was entitled to access his Yahoo Messenger account on the assumption that the communication was work related. The court also found that ‘it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours’ and that monitoring was found to be limited and proportionate as the employer only looked at the emails and not anything else.

Mr Barbulescu appealed to the Grand Chamber of the ECHR.

ECHR Grand Chamber judgment

By 11 votes to 6, the Grand Chamber held that Mr Barbulescu’s employers had breached art. 8 by not striking the right balance between its interests and his right to respect for his private life and correspondence.

The Grand Chamber said that although a right to private life could be reduced in the workplace, it could never be reduced to zero. This right always continued to exist, even if it is reduced by the employer’s rules in the workplace. A balancing act had to be done between a company wanting to ensure smooth running and the rights of the employee to private life and correspondence.

The Grand Chamber criticised the Romanian courts for not having determined if Mr Barbulescu had received prior notice from his employer that they might be monitoring his communications. Their only finding was an ‘observation’ that shortly before his disciplinary everyone had been told that another employee had been dismissed for using the internet personally.

The Grand Chamber concluded, based on the evidence available to them, that Mr Barbulescu had not been warned prior to the monitoring taken place or that the content of emails would be looked at. Neither did his employer take into consideration the nature or the extent of the monitoring or the degree of intrusion into his private life and correspondence.

The Romanian courts had also failed to examine the specific reasons justifying the introduction of these monitoring measures and whether measures could have been introduced which would have been less intrusive into Mr Barbulescu’s private life and correspondence. It said that the Romanian courts had failed to consider the seriousness of the consequences of the monitoring - namely his immediate dismissal - and finally they had failed to come to a decision as to when the emails had been accessed – was this before or after they had called him to a meeting to ask him if he had used company resources.

Link to judgment: http://www.bailii.org/eu/cases/ECHR/2017/754.html

Comment

This reinforces the need for employers from the outset to consider why they need to monitor an employee’s emails and what they are trying to protect. The usual reasons for looking at work emails is to ensure that employees are complying with their contracts and their regulatory obligations and this is likely to be a legitimate reason. However, to even have the right to look at work emails, the employer must warn employees in advance that this is what they are doing and why. Although it may be that ensuring an employee is actually working when they are at their desk is a legitimate reason, reserving the right to look at all emails (including private ones) on a work computer is unlikely to strike the required balance between the right to a private life and legitimate interests. A better way would be to tell employees that they should only access private emails or websites during breaks and that their use of the internet would be monitored in terms of time – but not the actual sites or emails. Then if an employee is on the internet all day, they can be taken to task for this. An alternative way, bearing in mind most employees have smart phones these days, would be to block access to private email accounts and the website on their systems, rather than retaining the right to go into private emails and read them.

Make sure you have comprehensive policies setting out in clear terms the circumstances in which personal use of systems is permitted and the extent and circumstances in which monitoring may occur (e.g. to ensure compliance with company rules, protection of data, etc.). Only access private emails if you have a reasonable believe that there is a breach, ensuring that you have some evidence and that you have balanced the right to private life with the protection of the company’s interest. It is also worth reading Part 3 of the Employment Practices Code from the Information Commissioner on monitoring at work.

Remember also that even though the UK is leaving the EU, the rights of the European Court of Human Rights is not affected and it will continue to have jurisdiction over the UK post-Brexit.