Background

Can an employer monitor an employee’s private communications at work?

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“Yes” held the European Court of Human Rights (ECHR)

Background

In the case of Barbulescu v Romania, the Claimant, Mr Barbulescu, was employed as an engineer by a Romanian company (the employer) between 1 August 2004 and 6 August 2007. He created a Yahoo Messenger account, at the request of his employer, intended to enable him to respond to client enquiries.

His Yahoo Messenger account was monitored by his employer between 5 July 2007 and 13 July 2007. During that period evidence of his communications showed that he had used it for personal reasons with his fiancée and brother.

The Claimant was informed on 13 July 2007 that his account had been monitored and it showed that he had used it for personal use. This contravened the employer’s policies which stated:

It is strictly forbidden to disturb order and discipline within the company’s premises and especially…to use computers, photocopiers, telephones, telex and fax machines for personal purposes.”

The Claimant was subsequently dismissed.

The Claimant alleged that the Yahoo Messenger correspondence pertained to his private life and correspondence and as such, were protected by Article 8 of the European Convention on Human Rights (“the Convention”). He alleged that his employer’s decision to terminate his employment had been based on a breach of this right and the domestic courts had failed to protect his right.

Please click for the full ECHR judgement.

ECHR decision

The ECHR concluded that, whilst there had been an interference with the Claimant’s right to respect for private life and correspondence within the meaning of Article 8, his employer had not violated this Article. The employer’s monitoring had been limited in scope and was proportionate. It felt the Romanian courts had balanced the employer’s interests and the Claimant’s right to privacy in a fair manner.

Learning points

Employers must be very careful if intending to monitor an employee’s communications. Whilst the ECHR held in this case that the employee’s human rights had not been breached, the facts and circumstances for each case will differ, and procedures should be put into place and followed in order to manage the monitoring of communications. .

Employers are recommended to:

  • Ensure internal policies deal with the monitoring of communications explaining circumstances that might give rise to communication being monitored;
  • Often policies allow for ‘reasonable use’ of work computers for personal use – what does this mean in reality?
  • Explain when an employee can use a work computer for personal use, i.e. during breaks/outside of work hours;
  • Explain what type of personal use is permitted i.e. emails/internet/streaming etc., and how much use is reasonable (can this be quantified?); and
  • Monitoring must not breach an employer’s internal policy, relevant law or collective agreement.

For further information and advice on this or any employment law concerns you may have please contact our Employment Law team on 01733 882800.


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