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Big bother - the latest on employee monitoring
Pure Employment Law > News > Big bother – the latest on employee monitoring

Big bother - the latest on employee monitoring

28 September 2017 by Marianne Wright
Big bother - the latest on employee monitoring

Back in January 2016, we reported on the European Court of Human Rights (ECHR) case Barbulescu v Romania, and what it meant for employee monitoring in the workplace. That decision has now been reversed by a higher chamber of the ECHR.

Recap: Mr Barbulescu

Mr Barbulescu, a sales engineer from Bucharest, set up an account with Yahoo Messenger (an online chat service) at his employer’s request, in order for him to respond to customer enquiries. Mr Barbulescu, however, then used Yahoo Messenger on his employer’s computer equipment to message his fiancée and his brother about personal (and sometimes intimate) matters.

The company’s internal rules, which Mr Barbulescu had signed a copy of, prohibited the personal use of the company's computers. The company also circulated a notice, which Mr Barbulescu had also signed a copy of, saying that employees' work would be supervised and monitored, and that misconduct would be carefully monitored and punished.

The company monitored Mr Barbulescu’s messages and summoned him to explain. At first he was told that his Yahoo Messenger communications had been monitored, but he was not informed whether that included monitoring their content. He was then sent a 45 page transcript which included the messages with his brother and fiancée relating to personal matters.

Mr Barbulescu was dismissed for unauthorised use of the internet and company equipment. His claim in relation to his dismissal in the Romanian courts failed, and he then pursued a claim to the ECHR on the basis that his right to privacy and correspondence had been infringed.

The January 2016 ruling

The case was initially heard by a lower chamber of the ECHR, which ruled that whilst Mr Barbulescu’s privacy had been breached, the decision of the Romanian courts was a fair and proportionate balance of the right to privacy against the employer’s right to protect its interests (see our previous article on the case here).

The latest ruling

Mr Barbulescu appealed to the Grand Chamber of the ECHR which recently delivered its ruling, reversing the earlier decision.  The Grand Chamber found that Mr Barbulescu’s right to private life had not been adequately protected and that a fair balance had not been struck between his and his employer’s interests. Notably, the judgment said an employer “cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary,”

Key to this ruling was that whilst Mr Barbulescu had been informed that personal use of the company’s equipment was prohibited, it was not clear whether he was told in advance of the nature and extent of the monitoring, or that his employer might have access to the content of the messages.

In reaching its decision, the ECHR noted the following relevant factors for national courts to take into account when considering the proportionality of employer monitoring:

  • whether the employee has been notified, in advance, that their correspondence may be monitored, and of the nature of the monitoring;
  • the extent of the monitoring and intrusion into the employee’s privacy;
  • whether the employer has provided legitimate reasons to justify the monitoring (where the content of the communications is being accessed this is more invasive, so requires weightier justification);
  • whether the employer could have used less intrusive methods;
  • the consequences of the monitoring for the employee and the use made by the employer of the results;
  • whether there were adequate safeguards, such as ensuring that the employer cannot access the actual content of the communications unless the employee has been notified in advance.

This case highlights the importance of having robust policies in place, setting out the nature and extent of monitoring. Employers in the UK also need to take account of the Data Protection Act, the Regulation of Investigatory Powers Act, and the forthcoming General Data Protection Regulation (see our previous article here). However, this case is a helpful reminder of some of the issues that employers should consider when proposing to undertake employee monitoring. The factors identified by the ECHR as relevant are reflected in the Information Commissioner’s Employment Practices Code which recommends employers undertake "impact assessments" before monitoring. We can work with you to draft and review policies to protect your organisation and reduce the risks of dispute, speak to a member of the team to find out more.

If you would like to talk through a situation you are dealing with, or need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.