The Press has given a lot of coverage to last Tuesday’s European Court of Human Rights (ECHR) decision in Barbulescu. See Times article,“Employers allowed to look at your private messages”.
As often is the case, however, there is a danger in relying on press coverage.
The case concerned a Romanian sales engineer who, at his employer’s request, created a Yahoo Messenger account for responding to client enquires. His employer had an internal rule that any personal use of its systems was forbidden. The company informed the employee that its records showed he had used the internet for personal purposes in breach of these rules. The employee replied in writing indicating that he had only used for professional purposes, following which he was presented with a transcript of his personal communications on Yahoo Messenger including with his fiancé and brother. He was ultimately dismissed for having breached the company’s rules and, in challenging the decision to be dismissed, complained there had been a breach of his right to private life and correspondence under Article 8 of the European Convention on Human Rights.
It is true that in its judgement, the ECHR concluded that, on the facts of the case, the Yugoslavian domestic court, in upholding the decision to dismiss had struck a fair balance between the employee’s right to respect for his private life and his employer’s interests, so there had been no breach of his Article 8 rights. The Court also indicated that “it is not unreasonable for an employer to want to verify that its employees are completing their professional tasks during working hours”.
When considering the implications of the decision in the UK, however, and, particularly, the extent to which it might allow monitoring of UK employees' personal internet usage of company systems, it is important to take account of the following.
- The Court was clear that the employee’s Article 8 rights were brought into play and, therefore, had to be considered by the courts.
- The Court indicated that, in the absence of a warning of monitoring, there would be a reasonable expectation of privacy including in relation to email and internet usage (in line with previous decisions).
- The issue, therefore, was whether, on the facts of the case, the Yugoslavian courts had struck a fair balance between the employee’s rights to a private life and correspondence and his employer’s interests.
- Two particular facts were key to the decision made. The first was the employer had an absolute rule prohibiting internet usage for personal reasons. Often this will not be the case.
- The second was that the employee was asked whether he had used the company's systems for personal reasons and denied that he had. It was only after this that the employer accessed his personal communications and provided him with the transcripts. This meant that the Yugoslavian courts were able to conclude that the employer had accessed the employee’s Yahoo Messenger account, “on the assumption that the information in question had been related to professional activities and that such access had, therefore, been legitimate”.
- Frequently in the UK, an employer will not have an absolute ban on the use of internet for personal messages during working hours. Also, of course, the position would be very different if an employer accessed communications which, on their face, seemed to be personal, e.g. emails with headers clearly suggesting this or otherwise where it would not be appropriate for the employer to assume that emails related to work.
- As reviewing emails/internet usage entails “processing of data”, it will be necessary to consider data protection legislation and, in the UK, to take account of the Employment Practices Data Protection Code issued by the Information Commissioner. In summary, this indicates that an impact assessment should be carried out prior to monitoring and that generally, in line with Barbulescu, clearly private communications should not be opened/accessed.
In summary, therefore, Barbulescu is a significant decision and helpful insofar as it confirms, following previous decisions, that Article 8 will not necessarily preclude the view of employee communications where employees do not have a reasonable expectation of privacy. It does not mean, however, that employers have free reign to review employees’ personal internet usage/emails. It will be important to consider relevant codes from the Information Commissioner on monitoring, together with an employer’s detailed policy and practice regarding internet usage and the particular reasons for wanting to monitor when considering any particular monitoring.