Employees should be made aware of communication monitoring

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Employees should be made aware of communication monitoring

Employees should be made aware of communication monitoring

ECHR have ruled that employees should be made aware of communication monitoring following the ruling in Barbulescu v Romania (61496/08) [2016] IRLR 235

The European Court of Human Rights (“ECHR”) reversed a Romanian case first decided in 2007, ruling that the Romanian judges had failed to protect Mr Barbulescu’s right to a private life and correspondence, by an eleven to six majority.

Mr Barbulescu, employed in the sales and marketing industry, was asked by his employer to set up a Yahoo Messenger account in order to answer clients’ enquiries. After having been warned not to use it for private matters he was found to have been emailing his brother and fiancée via the account.

After the account had been running for three years the company informed Barbulescu that they were aware of the private communications and he was subsequently dismissed. During his appeal process, the Romanian courts found against his claim that Article 8 guarantees him the right to a private and family life. He consequently took this claim to the ECHR in Strasbourg, where it was again dismissed.

Appeal to the ECHR’s Grand Chamber

Although his claim was dismissed, the ECHR found that Barbulescu had a right to privacy in the workplace and that he should have been warned in advance that his emails were being monitored. When considering the expectation of privacy, which a reasonable employee may have, the ECHR confirmed that an employer’s policy cannot reduce an employee’s private social life to nothing.

What does this mean for employers?

Barbulesco’s representatives said that this judgment reinforces the need for employers to first, consider why an employer is monitoring employee’s emails and secondly, what it is an employer is trying to protect. A legitimate reason for monitoring is to ensure that the employees are complying with the law and their obligations under their respective contracts of employment. Employers must however inform the employee in advance and provide the reason for doing so. Contractual provisions and IT policies should be reviewed to ensure they stipulate what use is acceptable by the employee and what monitoring by the employer is justified.

The ruling is a reminder that employers must have regard for Article 8 and should be prepared to justify any action they take on monitoring employees. When considering what action is necessary, proportionality and legitimate objectives must be at the forefront of the employer’s decision.

Post-Brexit and future guidance

The ECHR is separate from the UK’s membership to the EU therefore this decision will stand post Brexit. Further guidance and regulation on employee monitoring is expected in May 2018 by the General Data Protection Regulation (“GDPR”).

We act for many businesses to help them get ready for the GDPR. If you would like to find out more about what we are doing or require support or advice, please contact our Commercial Contracts team on 0345 070 6000.