Monitoring emails

The European Court of Human Rights (ECHR) has ruled that a Romanian employee’s right to privacy had been breached when his employer monitored his Yahoo messenger account.

Barbulescu v Romania, ECHR

Facts

The employee used a personal Yahoo Messenger account for sending private messages during working hours, in contravention of his employer’s policy prohibiting the personal use of company computers. Employees had been reminded of the policy and informed that communications would be monitored. Mr Barbulescu was dismissed and later failed in his challenge to the dismissal in the Romanian courts.

The ECHR decided last year that the employer had acted lawfully in monitoring the employee’s messages, and that the Romanian courts had struck a fair balance between the interests of the employer and the employee’s rights under Article 8 of the European Convention on Human Rights (right to private life and correspondence). Mr Barbulescu appealed to the Grand Chamber of the ECHR. 

ECHR decision

The ECHR has now reversed the previous decision, holding that the Romanian courts (as a public body) had failed to adequately protect the employee’s rights, under Article 8, when considering his challenge against his dismissal. In its judgment, the court set out a detailed, multi-factorial test for deciding whether workplace communications monitoring is lawful. The court determined that the employee had not been given sufficient notice in advance of the nature and extent of potential monitoring, and in particular of the fact that the content of his communications would be monitored. The Romanian court had failed to take this into account, as well as failing to properly consider the justification for such intrusive monitoring and whether the same result could have been achieved by alternative means.

Consequences

The ECHR’s latest decision in this case does not mean that employers can no longer lawfully monitor employee communications at work. The case hinged upon the question of whether the Romanian courts had adequately protected the employee’s convention rights, rather than the actions of the employer in dismissing him. However, the judgment does include some important practical guidance for employers to follow when considering whether and how to monitor employee communications. 

The content of this article is for general information only. For further information regarding monitoring emails, please contact Liz Stevens or a member of Birketts’ Employment Team.

This article is from the September 2017 issue of Employment Law, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at September 2017.

To keep up-to-date with the latest news, legal updates and seminar information, please register and select the areas that are of interest to you.