Spying on Employees: Has the European Court of Human Rights really given carte blanche to employers?

Schona Jolly looks at the recent judgment in Barbulescu v Romania.

British newspapers have been swirling with scaremongering stories that suggest the right to privacy in the workplace is dead. This week, the European Court of Human Rights gave an interesting judgment in Barbulescu v Romania which has led to media speculation that ‘Europe’ now gives employers free rein to monitor private communications of employees. In fact, the European Court has said no such thing.

The facts of the case included a policy in the workplace that specifically and expressly prevented employees from using computers for personal purposes. The employer asked its employee, an engineer in charge of sales, to create a Yahoo Messenger account for the purpose of responding to client enquiries.

The employer later informed the employee that his Yahoo Messenger communications had been monitored over the course of a week, and that the records showed he had used the Internet for personal purposes, contrary to the internal policy. The employee denied that he had done this and insisted that he had only used Yahoo Messenger for professional purposes. The employer then handed over a 45-page transcript of his communications, which included five short personal messages exchanged with his fiancée over the Yahoo Messenger account. He was dismissed specifically for breach of the company’s internal computer usage policy.

The employee responded that the violation constituted a breach of the Criminal Code and the Romanian Constitution, but his claim and appeal were dismissed by the Romanian domestic courts. Pleading a breach of Article 8 of the European Convention of Human Rights before the European Court of Human Rights, the employee applicant complained that the termination of his contract had been based on a breach of his right to respect for his private life and correspondence, and that the domestic courts had failed to protect his right accordingly.

The Court accepted that telephone calls from business premises are prima facie covered by the notions of ‘private life’ and ‘correspondence’ for the purpose of Article 8(1), and that emails sent from work should be similarly protected as should information derived from the monitoring of personal internet usage. However, the Court made these observations in the context of the admissibility of the complaint and looked specifically at the circumstances, including the accessing by the employer of private messaging to find that Article 8(1) was engaged.

The substantive complaint, however, was dismissed by the Court. At no point does the Court begin to suggest that there is an inherent right for employers to monitor the private communications of employees. Nor does the Court suggest that there is no right of privacy in the workplace. As with every Article 8 claim, the proportionality test is key in order to decide where the fair balance must be struck between competing interests. The Court was influenced by the factual context – the employer had accessed the applicant’s Yahoo Messenger account in the belief it had contained professional messages relating to the company’s activities, since that is what the applicant employee initially had told them. It wasn’t about the content of the messages, but their existence in circumstances where the employee had denied he had violated the internal computer usage policy. Such access, then, had been legitimate.

It was, perhaps, the Court’s observation that “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours” which led to the media storm over intrusion and privacy in the workplace this week. But the Court went no further than that.

Whilst caution over the use of social media in the workplace is advisable, the European Court has not suddenly overridden domestic law and practice. Nothing in the Court’s judgment should change the UK’s current law and practice as to monitoring in the workplace. Where there is a specific policy about computer or internet usage, plainly that will influence the reasonableness of an employer’s intrusion, but that policy itself, or any monitoring, must not be oppressive. There is a right to privacy to a certain extent within the workplace; reasonableness and proportionality remain key factors in the case-by-case balancing act.

Cloisters is happy to advise individuals and companies further on their rights and duties in the workplace in respect of privacy and monitoring.