Employment Law Solutions. Expert advice... more personal

Monitoring employee communications – a word of warning

The Grand Chamber of the European Court of Human Rights in the case of Barbulescu v Romania has held that an employee’s Article 8 privacy rights were infringed when his employer monitored personal emails that had been sent from a work account, reversing the decision of the European Court of Human Rights last year.

Background

Mr Barbulescu was asked to set up a Yahoo email account for work related purposes. The company he worked for had an IT policy which strictly prohibited any personal use of its IT systems. However, the policy did not state that the content of emails could be monitored.

Mr Barbulescu was informed by his employer that it had monitored his communications from the Yahoo account over the course of a week and considered that he had used it for personal purposes in breach of the IT policy. Mr Barbulescu denied using the account for personal messages and said that he had only used it for professional purposes. Mr Barbulescu’s employer then produced a 45-page transcript which showed he had exchanged messages with his brother and fiancée which contained intimate personal information.

Following disciplinary proceedings, the employer dismissed Mr Barbulescu for breach of its IT policy.

Mr Barbulescu brought action to challenge his dismissal and argued that his rights to privacy under Article 8 of the European Convention of Human Rights had been breached.

Decision

The European Court of Human Rights (“ECHR”) decided that while Article 8 was applicable, the interference of this right caused by the employer’s monitoring of email communications was necessary, fair and proportionate and had a legitimate aim of ensuring that employee’s abided by the company policy prohibiting personal use of the IT systems.

Dealing with the appeal, the Grand Chamber of the ECHR held that Mr Barbulescu’s right to privacy had been violated. While Mr Barbulescu was informed of the prohibition on personal use, he was not informed of the nature and extent of the monitoring or the possibility that that the employer could access the content of the communications. To comply with Article 8, employees should be given unequivocal notification in advance of the extent and nature of the monitoring activities.

Comment

The case demonstrates the importance of employers balancing their interests in monitoring employees’ activities against employees’ rights to privacy. Employers should have a policy which clearly states the extent and circumstances in which monitoring of personal use of IT systems may occur. If the content of communications may be accessed then the policy should expressly state this. In the UK, employers also need to consider the Data Protection Act 1998 as monitoring of email and internet involves the processing of personal data.

If you would like to speak to us about implementing an effective IT monitoring policy, please feel free to email us  or contact us on 0191 282 2880 for a no obligation chat.

 

This entry was posted in Law. Bookmark the permalink.

Comments are closed.