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31st January 2016

Monitoring employees' use of the internet – the reality

In Barbulescu v Romania the European Court of Human Rights decided an important case on privacy of personal communications at work. Contrary to recent media coverage, this case does not allow free rein for employers to monitor and snoop into employees’ private messages (without limitation).

Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive private messages, which had breached the employer’s internal rules prohibiting any personal use whatsoever of the company’s computer’s, internet or telephones. Accordingly, his employer, upon discovering these messages, dismissed him.

As part of the investigation, his employer accessed intimate messages that were particularly sensitive in nature which included references to his health and sex life. In view of this, Mr Barbulescu appealed to the European Court of Human Rights and contended that his employer had breached his Article 8 right to respect for his private life and correspondence, and that the domestic courts had failed to protect his right.

The ECHR held that whilst Article 8 was engaged, the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified.  Further, it concluded that there had been no violation of the Article since his employer’s monitoring had been limited, proportionate and it was not unreasonable for an employer to want to verify that employees are working during their working time. In this instance, Barbulescu's employer had accessed his Yahoo account in the belief that it contained work-related messages, since it had been set up on the business's request for that purpose, and its access to the account was therefore legitimate.

Implications for employers

A word of warning: despite what the press says, this case does not set a precedent for employers to be able to monitor and snoop into employees’ private messages without cause.

Whilst this case sets out the position under the European Convention of Human Rights, it is useful in demonstrating that any monitoring of employees' personal communications must be carried out subject to reasonableness and proportionality in the particular circumstances of the case. The case also highlights the importance of a well drafted social media/communications policy to allow the review and monitoring of employees' personal use of company IT systems. This in turn, must be communicated to employees and enforced consistently. With a clear policy in place, the legitimacy of an employer's actions will then depend on whether it strikes a fair balance between the employee's right to privacy and the employer's right to protect its business.

Barbulescu’s employer had a strict 'no personal use' policy which had been clearly communicated to all employees and because he had denied sending any personal emails/messages, it was deemed reasonable and proportionate for his employer to dismiss him.

Carley Kerrs-Walton, Solicitor, Napthens LLP – QCS Expert Employment Law Contributor

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