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Employee monitoring – how far can you go?
Pure Employment Law > News > Employee monitoring – how far can you go?

Employee monitoring – how far can you go?

28 January 2016 by Nicola Brown
Employee monitoring – how far can you go?

Employee monitoring hit the headlines last week, with the latest case from the European Court of Human Rights making the main news bulletins (such as the BBC). The way the case was reported suggested that employers now have the green light to monitor employees’ online activity at work as much as they like. We look at what the case means in practice for employers and employment law.

There are inevitably some occasions when an employer wants to check up on what employees are getting up to during their working hours. Usually in my experience this will be for a particular reason, such as where misconduct is suspected, rather than as part of a general practice of monitoring all staff.

In the recent case (Barbulescu v Romania) the employee was exchanging messages with his fiancée and his brother using his employer’s computer equipment but via the Yahoo Messenger online service. The employer had a policy stating that personal use of the Internet was not permitted and also that monitoring could be undertaken.

Following an investigation, Mr Barbulescu was dismissed for his unauthorised use of the Internet and the company’s equipment. He brought a claim in relation to his dismissal in the Romanian courts, which failed, and he then brought a human rights claim against the Romanian government arguing that his right to privacy and correspondence had been infringed.

The European Court of Human Rights (ECHR) decided that Mr Barbulescu’s privacy had been breached, but that the Romanian courts had to balance that right to privacy against the employer’s right to protect its interests. In the circumstances, the balance that had been struck was fair and proportionate.

In particular, it was found to be relevant that Mr Barbulescu had told his employer that he only used the Yahoo Messenger service for business communications, and it was on that basis that the messages had been checked. Also, the ECHR found that it was not unreasonable for an employer to check whether its employees are working during their working hours. Here, the employer’s position was helped by the fact that they had not looked at other data or documents on the employee’s computer and had only examined the messages – the court said that this showed that the monitoring was limited and scope and therefore proportionate.

So does the case do what the media have reported and give employers the right to ‘snoop’ on their employees’ online activity whilst at work? Well no, not really. Although the case appeared to be found in the employer’s favour, that does not amount to an endorsement of everything that they did. In actual fact, all the ECHR did was to find that Romania had not breached Mr Barbulescu’s human rights by allowing him to be dismissed in circumstances where his privacy had been infringed.

As far as employers in the UK are concerned, the case does not really change much at all (which doesn’t make for very good headlines, but it is true!). Employers who want to engage in monitoring of employees’ online behaviour need to take account of the Data Protection Act and the Regulation of Investigatory Powers Act, and should have a clear policy in place setting out their right to monitor and to what extent personal use of systems is permitted. Our previous article on different kinds of employee monitoring can be found here.

In practice of course, employees who wish to exchange private messages during working hours without being monitored will probably do so via a smartphone. However, with the rise of Bring your Own Device (BYOD) arrangements where employees use their own devices to access the employer’s systems, we expect that this may well be an area where more cases will come along in future.

If you would like to talk through a situation you are dealing with, or if you 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.