On Tuesday of this week, the European Court of Human Rights (ECHR) gave judgement, in the case of Bărbulescu v. Romania, that it was not unlawful for an employer to monitor an employee’s personal communications at work. This decision has been reported widely in the UK national press as condoning snooping by an employer on workers’ private emails and messages. However, in reality the decision does not change the position as currently understood by UK employers – it does, however, provide a helpful reminder of the key issues in this area.

Mr Bărbulescu was employed as an engineer with a private company in Romania. He created a Yahoo Messenger account, at the request of his employer, for the purpose of responding to client queries. He also used this to send personal messages to his brother and fiancee, including about his health and sex life. His employer discovered this, and dismissed him for breaching the company’s internal regulations that prohibited the use of company resources for personal purposes. Mr Bărbulescu challenged this decision on the basis that the company had violated his right to privacy.

The ECHR found that Article 8 (the right to respect for private and family life) was engaged in this case. However, the ECHR did not find it unreasonable “for an employer to want to verify that the employees are completing their professional tasks during working hours”. Furthermore, the ECHR found that the employer had examined the communications on his Yahoo Messenger account, and not other data and documents that were stored on his computer. The ECHR therefore found that the employer’s monitoring was limited in scope and proportionate, and not unlawful.

Interestingly, in this case the ECHR stated that the national courts had placed particular importance on the fact that the employer had accessed the employee’s Yahoo Messenger account in the belief that it had contained professional messages.

Of course, employees may well argue that new technologies make snooping increasingly easy for employers, and more difficult for employees to understand or detect. This may be true, but it does not change the general position as regards the permissibility of monitoring. Therefore it is, as always, vital to ensure that the following are in place/done, in order to carry out any such monitoring lawfully:

  1. Employers should have a clear policy in place which sets out acceptable use of the organisation’s system. It should also set out any monitoring which may be carried out of employees’ communications;
  2. The policy should be communicated and available to employees; and
  3. Enforcement of the policy should be consistent and proportionate.

Bărbulescu v. Romania does not in our view extend the above principles, but it is a helpful reminder or the remit within which employers should operate to monitor employee communications lawfully.

Posted on 15/01/2016 in Legal Updates

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