This case provides employers with useful guidance on the extent to which monitoring of employee communications should be conducted and a reminder that employers’ policies will need to be explicit about monitoring if the employer wants to monitor employees.
An employee was dismissed for personal internet use at work, contrary to the employer’s IT policy. As part of its investigation the employer accessed intimate messages sent by the employee to his fiancée and his brother. These messages were printed by the employer and used in the disciplinary proceedings as well as in the employee’s subsequent court challenge, which was unsuccessful.
The Grand Chamber of the European Court of Human Rights (ECtHR) held by a majority that an employee’s Article 8 privacy rights had been infringed as a result of his employer’s decision to monitor personal messages which he had sent on a work-related Yahoo Messenger account.
This judgment overturns an earlier decision of the Fourth Section of the ECtHR, given in January 2016, in which the court found that the monitoring of the employee’s internet usage and the use of the Yahoo Messenger communications in disciplinary proceedings was a proportionate interference with his Article 8 rights.
In its decision, the Grand Chamber set out the factors to be considered when assessing the monitoring of workplace communications, and held that the Romanian courts had failed to properly analyse such factors. It was incumbent on domestic authorities to ensure that sufficient safeguards against abuse are put in place. These include: providing clear advance notification about the potential monitoring; in this case, the employee had not been informed of the nature and extent of the monitoring, or of the possibility that the employer may access the actual content of messages. The Romanian courts had failed to strike a fair balance between the relevant competing interests and had not adequately protected the employee’s right to respect for his private life and correspondence. However, the court dismissed the employee’s claim for damages, finding that there was no causal link between the violation found (against the State) and the damages claimed, which flowed from the employer’s dismissal. (Bărbulescu v Romania).
We would advise all employers to have a policy which covers personal internet use at work. Such policies should be regularly reviewed to make sure that they are up to date with programs and applications which employees may use. Employers should make the extent and nature of any monitoring clear and if they intend to monitor the content of emails and messages, they should say so explicitly.
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