Further to our Be Aware post of 1 February 2016 http://www.dlapiperbeaware.co.uk/employers-do-not-have-green-light-to-monitor-employees-emails-despite-echr-judgment/ on 5 September 2017 the Grand Chamber of the European Court of Human Rights overturned the Lower Chamber’s judgment in Barbulescu v Romania and held the dismissal of an employee after his employer monitored his Yahoo Messenger communications and discovered that he had used the internet for personal purposes had breached his Article 8 of the Convention on Human Rights right to respect for his private life and correspondence. This decision makes it clear that employers need well-drafted, well-communicated policies which clearly explain what internet and social media usage is prohibited in the workplace and what measures the employer will take to monitor and control such usage.
The employer’s internal regulations prohibited personal use of computers but did not contain any reference to the possibility that employees’ communications would be monitored. The employer undertook monitoring of Mr Barbulescu’s Yahoo Messenger account, including both the frequency and content of personal communications. Mr Barbulescu unsuccessfully challenged his dismissal in the Romanian courts, arguing that the employer had breached his Article 8 right to respect for his private life and correspondence. He then brought a claim in the ECHR, arguing that the domestic courts had failed to protect his Article 8 right. In 2016 the Lower Chamber dismissed his claim, holding that Mr Barbulescu had no reasonable expectation of privacy in his communications at work. The national authorities had struck a fair balance between his right to respect for his private life and the employer’s interests. Mr Barbulescu then took his case to the Grand Chamber, who disagreed with the Lower Chamber. The Court considered that it was clear that Mr Barbulescu had been informed of the ban on personal internet use, but not so clear that he had been informed about the monitoring before it took place, particularly about the possibility that the employer might have access to the content of communications. The Court considered that when domestic courts are considering the proportionality of employer monitoring of communications, the following factors should be taken into account:
- Whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence;
- The extent of the monitoring and the degree of intrusion into the employee’s privacy. A distinction should be made between the flow of communications and their content;
- Whether the employer has provided legitimate reasons to justify monitoring the communications and accessing content
- Whether it would have been possible to establish monitoring based on less intrusive methods;
- The consequences of the monitoring; and
- Whether the employee has been provided with adequate safeguards.
In this case, the Grand Chamber found that the court’s conclusion that a fair balance had been struck between the employee’s rights and the employer’s interests questionable. The Grand Chamber considered that the Romanian courts did not protect Mr Barbulescu’s Article 8 rights.
This decision makes it clear that if employers want to monitor and restrict personal use of the internet and other communications at work, the policy must make it clear what is or is not permitted and must inform employees of any monitoring which will take place. Restrictions and monitoring should be proportionate; the Grand Chamber noted that an employer’s instructions cannot reduce private social life in the workplace to nothing.