The European Court of Human Rights (ECHR) has been asked to determine whether an employer’s monitoring of an employee’s Yahoo Messenger Account (YMA) was a breach of Article 8 of the European Convention of Human Rights (Article 8).
Mr Barbulescu had been employed for 3 years by a Romanian company (the employer). He was notified that his YMA had been monitored and that the records showed he had used it for personal purposes. Mr Barbulescu denied the allegations and asserted that he had only used his YMA for professional purposes.
The employer then presented Mr Barbulescu with a transcript of personal messages, spanning forty-five pages, from his YMA account. At this stage Mr Barbulescu raised an allegation that his employer had violated his correspondence and was liable under Romanian criminal law. He later raised the argument that his employer’s actions were also in breach of Article 8.
The employer went through their internal disciplinary procedure and terminated Mr Barbulescu’s employment. They relied on their internal regulations which clearly stated that “it is strictly forbidden…to use computers, photocopiers, telephones, telex and fax machines for personal purposes”. They also presented evidence that a notice confirming this regulation had recently been issued to staff and that they had be warned that their activity was under surveillance following a recent dismissal for breach of the regulation.
The claim originated from Romania and therefore involved the consideration of whether the Romanian domestic law was in breach of European Law as well as considering whether the monitoring breached Article 8. The Romanian domestic law is irrelevant to the United Kingdom however the consideration of Article 8 is very relevant.
Article 8 is the Right to Respect for Private and Family Life. This means that everyone has the right to respect for his private and family life, his home and his correspondence.
The ECHR concluded that Article 8 was applicable and the question therefore became whether Mr Barbulescu had a reasonable expectation to privacy and whether a fair balance had been struck between the competing interests of the employee and the employer. The ECHR found that “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”.
They found that the employer had a legitimate aim when conducting the monitoring and that it did not go beyond what was proportionate in the circumstances. The decision to dismiss was based on the use of the YMA for personal purposes and did not relate to the contents of the messages themselves.
Mr Barbulescu’s application to the ECHR was therefore dismissed.
This decision is automatically binding on the United Kingdom but in reality it does little to change the current position.
Whenever an employer wishes to undertake monitoring they need to ensure that they need bear in mind the employee’s right to privacy. They also have to be alive to issues relating to the Data Protection Act and avoid undermining the implied contractual term of trust and confidence.
An independent EU Working Party has advised that monitoring will be in breach of an employee’s rights unless the measure passes the following four tests:
- fairness; and
Although the body only has advisory status its suggested tests are sensible. We recommend that businesses should have clear monitoring policies and in order to minimise any risks, an impact assessment should ideally be carried out beforehand, taking into consideration the above tests.
The Information Commissioner’s Office recommends that in carrying out an impact assessment, it should identify:
- the purpose behind the monitoring and likely benefits;
- likely adverse impacts;
- alternative ways in which the purpose might be achieved;
- the obligations which will arise from monitoring;
- whether the decision to conduct the monitoring can be justified; and
- the extent to which the monitoring is reasonable bearing in mind the employee’s right to privacy.
An employer should also ensure that employees are all made aware of the policy and sign a relevant notice confirming that the policy has been drawn to their attention.
The outcome in the case could have been entirely different if Mr Barbulescu had been able to establish that he had a reasonable expectation to privacy. It is therefore an important reminder to employers that a clear monitoring policy, implemented following a thorough impact assessment, is vital if they wish to stay the right side of both national and European law.
Hazel is a paralegal and based in the employment team in Exeter. If you would like to contact Hazel, please call 01392 210700 or email HRE@stephens-scown.co.uk.