Last year, in the case of Barbulescu v Romania the European Court of Human Rights found that the monitoring of an employee’s emails was justified where an employer was looking to verify if an employee was carrying out their professional tasks during working hours or using email for personal reasons. The decision was overturned this week by the Grand Chamber (the highest appeal court in human rights cases) following an appeal by Mr Barbulescu. This case highlights the importance of having robust employment policies in place to ensure that individual privacy rights aren’t breached.
The Facts
In this case, the employee in question worked for a company in Romania as an engineer in charge of sales. At the request of the company, the employee created a Yahoo Messenger account to deal with customer enquiries. The employer’s policy on communications stated that employees could not use computers and telephones for personal purposes.
In July 2007, the employer informed Mr Barbulescu that they had been monitoring his computer and telephone usage for around a week. During this time, the company uncovered that he had been using the internet and company telephones for personal purposes. The company produced a 45 page transcript of Yahoo instant messages that the employee had been sending to his fiancée (some of which were intimate in nature) and his brother. On the basis that the employee was in violation of the company policies, he was dismissed by the company.
Aggrieved by the company’s decision, the employee challenged the dismissal in the Romanian court, claiming that the company had not only violated Romanian law, but also Article 8 of the European Convention on Human Rights. Article 8 protects the right to respect for private and family life. The employee argued that the company should not have been accessing his Yahoo account, which was password protected, and reviewing sensitive personal emails without his knowledge.
The Decision
After a detailed review of the law in this area, the Grand Chamber agreed that there had been a breach of the employee’s right to privacy. In reviewing the law, the court explained that it was an established principle that an employee’s personal calls and emails from company premises were afforded the protection of privacy under Article 8. Even though the employee was acting against the policies of the employer, the employee was entitled to the privacy of his emails and phone calls.
Is the monitoring of employee emails unlawful?
Although the court found in favour of the employee in this case, it does not mean that employee monitoring is unlawful per se. The Court in Barbulescu helpfully laid down some general principles that are useful for employers to follow when it comes to monitoring employee email and internet use. These are as follows:
- Employers should make it clear to employees that their email communications and phone calls may be monitored;
- Employers should inform employees of the extent of the monitoring and the degree to which this may intrude on their privacy;
- Employers should have a legitimate reason for monitoring communications; and
- Employers should consider if there are less invasive means of monitoring employees.
Following this decision, it is clear that employers should carefully review the contractual provisions and general policies that it has in place for monitoring employee email, telephone and internet use.
It is also worth highlighting that this decision will remain binding in the UK following Brexit, since the European Convention on Human Rights operates separately from European Union law.
It is likely that further guidance in this area will also be produced by the Information Commissioners Office in advance of the implementation of the new General Data Protection Regulations in May next year.
