Advances in technology have made monitoring employees easier than ever before. With the increased use of email, smartphones, laptops, trackers and SmartWare, almost every mode of communication has gone digital. As such, it is now possible to monitor your employees' every movement and communication, to find out not just where they are but also how productive they are being.
However, many employees try to argue that this monitoring is an intrusion on their right to a private life (under Article 8 of the Human Rights Act) and is therefore unlawful.
This important issue has been the focus of two recent decisions by the European Court of Human Rights (ECHR). In each case, the judges considered the limits on what is and isn't permissible when it comes to the surveillance of employees.
In Bărbulescu v. Romania, Mr Bărbulescu was dismissed for using his professional Yahoo Messenger account to send personal messages whilst at work. The employer knew this because it had monitored and accessed his messages to check on his usage of the account.
Mr. Bărbulescu successfully argued that his right to private life and correspondence had been breached by his employer's monitoring. In reaching its decision, the ECHR emphasised the need to strike a fair balance between Article 8 and an employer's right to take measures to ensure the smooth running of the company. It said that every case would be different, but consideration should always be given to:
- whether the employee has been notified of the possibility of monitoring;
- the extent of any monitoring and the degree of intrusion into the employee's privacy;
- whether the employer has legitimate reasons to justify monitoring;
- whether more proportionate methods could be used;
- the consequences of monitoring for the employee; and
- whether the employee was provided with sufficient safeguards to ensure that the employer cannot access the content of communications unless the employee has been notified in advance.
In another case on this issue, López Ribalda v. Spain, an employer installed covert video surveillance to monitor its employees due to suspicions of workplace theft. Five employees were subsequently dismissed after they were caught on video stealing the employer's property.
The facts of this case were somewhat surprising as, even though the employees had committed theft (as suspected by the employer), the ECHR still found that their right to privacy under Article 8 had been breached. Further, each employee was awarded €4,000 damages, plus costs and expenses.
Similar themes to that in Bărbulescu emerged from this decision. The ECHR emphasised that its decision was influenced by the fact that:
- all staff were subject to the surveillance, rather than only those employees who were most likely to be responsible for the thefts;
- the surveillance took place over an unnecessarily prolonged period;
- the surveillance had not been carried out in accordance with the data protection principles; and
- less intrusive means were available – the aim of preventing further thefts could still have been achieved if the employer had informed the employees in advance of the installation of cameras.
What does this mean for employers?
These decisions do not ban employers from monitoring employees, or even from using covert surveillance in the workplace. However, employers should always ensure that any monitoring undertaken is proportionate and for legitimate reasons. Save in exceptional circumstances, employees should also be notified of the monitoring.
With the introduction of the General Data Protection Regulation (GDPR) fast approaching in May 2018, these issues are particularly relevant. Employers will no longer be able to rely on blanket contractual consents to the processing of personal data. It is time to start thinking about other grounds, including the legitimate interest of the business, to justify the processing of such data.