In the case of Barbulescu v Romania, the European Court of Human Rights (ECtHR) ruled that an employer monitoring personal messages sent by an employee at work did not unlawfully breach the employee’s right to respect for private life.
This is not to say that all employees’ personal emails can now be read by employers and evidence collected from them, without limitation. As one judge stated, “…workers do not abandon their right to privacy and data protection every morning at the doors of the workplace”.
Facts of the case
In this case, the messages that the employer read were from a Yahoo messenger account that the employee had set up to deal with client enquiries. The employer had a clear policy that the account was not for personal use.
The employee was advised that he had broken the company rules by using the account personally and the employee was not able to provide a good reason for it. It was only upon the employee’s denial that he’d used the account for personal use that the employer provided copies of the personal messages sent. The employee was then dismissed for breaching the company’s rules.
The employee claimed that due to his right to privacy, (his emails contained personal data and sensitive personal data relating to his health and sex life) the dismissal was unlawful. This was dismissed by the Romanian courts. The employee then brought his claim in the ECtHR, where the court considered whether Romanian employment law fairly balanced the employee’s right to privacy and the rights of the employer. The employee’s claim was also dismissed.
The ECtHR took into account that the messages were only monitored by the employer in the first place because it thought that the employee would be sticking to the company rules and only have work-related messages to monitor. The employer only relied on the personal messages as proof that the employee was dishonest in claiming that he had only used his work account for professional purposes.
The ECtHR ruled that “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”. This does not mean that there is no right to privacy within email correspondence – the employer’s actions still have to be reasonable and proportionate, and there has to at least be a reasonable expectation of privacy in the circumstances.
Does this change the way I should monitor my employees’ communications?
The decision of the Court does not change the way in which employers should go about monitoring employee communications.
It is particularly important to note that it was not the content of the personal emails that led the employer to dismiss the employee, but the fact that there were personal emails on the account in breach of company rules (and the quantity found on the employee’s denial of this – 45 pages!) that was the issue.
As with many ECtHR rulings, more questions are raised than answered, for example, is the failure of employers to inform employees that they are monitoring their correspondence crucial to deciding whether a breach of Article 8 has been committed or not, or is this only important where private use of the equipment is not banned? If there is a ban on private use, is there a right for employers to put employees under surveillance in any event, or do they require denial of an accusation of breaking the employer’s rules to do this?
How do I best protect my business and monitor communications lawfully?
To justify monitoring of electronic communications at work, employers should ask themselves the following: is there a clear business need for the monitoring? Is the level of intrusiveness of this monitoring reasonable and proportionate to business need? Have I clearly communicated to employees how and why monitoring might take place?
In order to protect your business the best way you can from misuse of email at work, data protection rules must be followed (see our Data Protection and Data Security Policy) and a robust and up to date Communications and Equipment Policy which is provided to all staff, is also strongly recommended. If you are unsure about the way in which you are monitoring employee communications or anything else raised in this article, you can always Ask a lawyer.