In September 2017 the Grand Chamber of the European Court of Human Rights (ECtHR) ruled on the right of an employer to access and monitor electronic communications of its employees in the course of their work.
The judgement was handed down in the context of an appeal made to reverse the decisions of the Chamber of the ECtHR and the Romanian Courts, which had both ruled that the employer had acted proportionately and lawfully when monitoring correspondence in the applicant’s work computer that ultimately led to his dismissal.
Mr. Barbulescu, was employed as a sales engineer by a Romanian private company in Bucharest. During his employment he was required to abide by his employer’s internal policies prohibiting, among others, the personal use of computers and internet in the workplace as well as recognizing the employer’s right to supervise and monitor employees’ work. He was found to have used his Yahoo Messenger account, specifically set up for replying to client’s inquiries, for personal purposes, exchanging messages with his brother and fiancée. When confronted by the employer, even though he objected, he was presented with a transcript (content) of the communications which the employer monitored regularly. Mr Barbulescu was subsequently fired.
He claimed that his employer had breached his right to a private life and correspondence enshrined under Article 8 of the European Convention on Human Rights (ECHR) and that his dismissal was unlawful.
The Grand Chamber ruled that, although the applicant had indeed been informed of the restriction to use company facilities for personal purposes, it had not been made specifically clear that his communications would be monitored by the employer, or the extent and nature of such activities; as well as the possibility that the employer might have access to the contents of his messages. It recognized that despite the right of an employer to introduce restrictions on employees, there is always a “reasonable expectation of privacy” so that he does not “reduce private social life in the workplace to zero.”
In addition, it adjudicated that in such circumstances there is a positive obligation upon the state to set up a legislative framework as well as the courts, when deciding such contentious issues, to take into consideration the rights of the employee and the interests of the employer through a balancing exercise in accordance with Article 8 ECHR. The Grand Chamber of the ECtHR was of the view that in Mr. Barbulescu’s case, the Romanian courts failed this duty.
The ECtHR also listed a number of guidelines in its judgment that domestic authorities should take into account when assessing the proportionality of employee monitoring operations undertaken by employers in order to prevent abuse.
What does this mean for employers? Despite the manner in which the matter is reported in various media, it certainly does not result in an outright prohibition on an employer to monitor employees’ use of equipment. However, it does restrict the scope of legitimate monitoring and requires both a clear and detailed policy on the matter, as well as the reasonable exercise of discretion when determining who, how, when and what monitoring is undertaken. It is always expected that the least intrusive method of monitoring is adopted, having regard to data protection and the employee’s right to privacy.
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