In early 2016, a European Court of Human Rights (ECHR) case (Barbulescu v. Romania) attracted much publicity because it appeared to give employers the green light to read employees’ private emails (read our original commentary here). The decision in the original case has now been overturned by the Grand Chamber of the ECHR.
The case concerned a Romanian national, Bogdan Mihai Bărbulescu. Mr Bărbulescu had been dismissed after his employer monitored his work-related Yahoo Messenger account and discovered that Mr Bărbulescu had used it for private communications, including messages to his brother and fiancée, which was in breach of the employer’s internal policies.
After unsuccessfully bringing employment claims in the Romanian courts, Mr Bărbulescu brought his case before the ECHR, claiming that Romania had failed to protect his Article 8 right under the European Convention on Human Rights in relation to respect for his private and family life, his home, and correspondence.
The Fourth Section of the ECHR dismissed Mr Bărbulescu’s claim, who then appealed to the Grand Chamber of the ECHR.
The Grand Chamber’s decision
The Grand Chamber reversed the Fourth Section’s decision and found that the Romanian courts did not strike a fair balance when weighing Mr Bărbulescu’s right to respect for his private and family life against the employer’s right to engage in monitoring, resulting in a violation of Article 8. In particular, the Grand Chamber noted that the Romanian courts had failed to consider:
- the fact that Mr Bărbulescu had not been informed in advance of the extent and nature of his employer’s monitoring activities, or that his employer might have access to the actual content of his messages;
- the degree of intrusion into Mr Bărbulescu’s privacy;
- whether the employer had set out a specific aim or legitimate interest to justify the monitoring measures;
- whether the employer could have used less intrusive measures; and
- the seriousness of the consequences of the monitoring and the subsequent disciplinary proceedings.
What does the latest ECHR decision mean for employers?
In the same way that the previous decision of the Fourth Section of the ECHR did not give employers carte blanche to read their employee’s private messages, the Grand Chamber’s decision does not spell out an absolute prohibition on monitoring employees’ communications.
Employers may monitor communications in very limited circumstances, but if they are considering doing so, they should take into account the following points that have been highlighted by the Grand Chamber as relevant in determining the lawfulness of monitoring employees’ communications:
- Prior notification – Employers need to give employees prior notice that they may take measures to monitor correspondence, and be very clear about the nature and extent of such measures.
- Degree of intrusion – Employers need to consider whether:
- only certain messages (as opposed to all correspondence) need to be monitored and whether to limit both the duration of the monitoring and the number of people who have access to the results; and
- it would be possible to carry out the monitoring using less intrusive methods.
- Legitimate reason – Employers need to set out a legitimate reason to justify the monitoring and for accessing content.
- Consequences – Employers need to consider the consequences of the monitoring for employees subjected to it.
- Safeguards – Employers need to establish adequate safeguards for employees (i.e. employers cannot access the actual content of the communications unless the employee has been notified in advance).
This is an important case, as it sets out clear guidelines on the factors that need to be considered by employers when monitoring employees’ communications. As a starting point, employers should review their internal policies to ensure that they clearly set out what is allowed in the workplace and explain that the employer intends to monitor employee communications. They should also include specific details of the nature and extent of any monitoring, including whether the content of employee communications may be monitored. A risk assessment would then need to be carried out by the employer before any monitoring takes place, addressing all of the factors highlighted above to determine whether the proposed monitoring is lawful and proportionate.