Sent items: “I wish I had won the £66 million rollover so I could tell my boss where to stick this job”... “I am so hungover I haven’t done a thing today”... “I think my boss got dressed in the dark this morning”... “I spent my afternoon in an online queue for Adele tickets”.
Despite the occasional urge, no one would want their (poorly dressed) boss to catch them saying any of these things. During our school days we catapulted tiny handwritten notes across the table when the teacher turned their back. Many will remember the paralyzing dread when said teacher intercepts its travel and unfolds that tightly wrapped note filled with secrets. Many employees were reminded by a ruling of the European Court of Human Rights last week that those days may not be as firmly behind us as we might have hoped.
Bogdan Mihai Barbulescu was employed as an engineer in charge of sales for a Company based in Bucharest. In order to fulfil his role, Mr Barbulescu was asked by his employer to create a Yahoo Messenger account for the purpose of answering enquiries received from clients. Some three years into his employment, Mr Barbulescu was informed that the Company had been monitoring his Yahoo Messenger usage during the previous week. Mr Barbulescu stated, in writing, that he had only used the account for professional purposes. In response, the Company produced an extensive transcript which showed personal exchanges between Mr Barbulescu, his brother and his fiancée. Mr Barbulescu’s employment was terminated for breach of the Company’s policy which stated:
“It is strictly forbidden to disturb order and discipline within the company’s premises and especially... to use computers, photocopiers, telephones, telex and fax machines for personal purposes.”
Mr Barbulescu challenged the decision in the Bucharest County Court on the grounds that his privacy had been violated. His efforts were in vain. The Bucharest Court of Appeal dismissed Mr Barbulescu’s appeal and held that his employer’s conduct was justified.
In his appeal to the European Court of Human Rights, Mr Barbulescu relied on Article 8 of the European Convention: the right to respect for private and family life, the home and correspondence. Whilst they found that Mr Barbulescu’s rights under Article 8 had been engaged, they concluded, by six votes to one, that there had been no violation of this right. The Court held that it was not unreasonable for an employer to want to verify that employees were completing work tasks during operating hours. Furthermore, the Yahoo Messenger account had been created for business use and his employer accessed the account in the belief that it contained only work-related correspondence.
The media’s reaction suggests that last week’s Judgment awards infinite powers to employers to monitor their employees. Whilst Mr Barbulescu’s case has perhaps made employers more aware of the channels which are available to them, it has not changed things from a legal perspective. Employers are entitled to monitor their employees, however, this should be limited in scope and should be proportionate. Employers should be made aware that their communications may be monitored. A fair balance must be struck between an employee’s privacy rights and the business interests of the employer.
Throughout the handling of any misuse or misconduct issues, employers should also remain mindful that going beyond what is required could infringe employees’ data protection rights.
There are numerous scenarios which were not explored in the present case, for example, if an employee accesses a personal email account from their work computer, can these emails be read? What if the personal messages were sent from a work account outwith normal working hours, can these emails be read? The advancements in technology blur the lines between personal and work life. As in this case, the key is having a clear policy in place which outlines the employer’s rules and expectations.