Decision Overturned on Employer Monitoring Employee's Private Messages

... concluding that the employer's monitoring of the employee's communications at work was an infringement on his right to respect for private and family life.

The Facts

Mr Barbulescu was employed as an engineer in charge of sales. At his employer's request, he set up a Yahoo Messenger to answer client enquiries. Mr Barbulescu was made aware that company policy prohibited the use of the company's IT equipment for private communications and that others had been dismissed for breaching this policy. 

On 13 July 2007, the employer informed Mr Barbulescu that it had monitored his Yahoo Messenger communications and produced a transcript showing that he had been exchanging messages with family members containing personal information about his health and sex life. On 1 August the employer dismissed him for unauthorised personal use of the internet.

Mr Barbulescu initially brought an unsuccessful action in the Romanian courts to challenge his dismissal and then later a claim against the Romanian government in the European Court of Human Rights (ECHR) , arguing that it had failed to protect his rights to privacy and correspondence under Article 8 of the European Convention of Human Rights. The ECHR found that the monitoring was proportionate and that, although Article 8 was applicable, there was nothing to suggest that the Romanian authorities had failed to strike a fair balance between the employer's interests and respect for the employee's private life.

Mr Barbulescu appealed to the Grand Chamber of the ECHR.

Six Considerations to Take into Account

The Grand Chamber found that Mr Barbulescu's Article 8 rights had been infringed. It was held that the Romanian courts had not adequately protected his right to respect for his private life and correspondence and that they had failed to strike a fair balance between the competing interests.

In the ECHR's view, whilst Mr Barbulescu was informed that there were restrictions on the personal use of IT equipment, he was not informed of the nature and extent of the monitoring, or that the employer would have access to the content of his communications. They found that in order to decide if a fair balance between the competing interests is struck, the following considerations must be taken into account by domestic courts:

• that unequivocal notification should be given in advance about the monitoring of communications
  
  
• the extent of the monitoring and the degree of intrusion into the employee's privacy - there is a distinction between monitoring the flow of communications and their content
  
  
• whether the employer has provided legitimate reasons to justify monitoring communications and their actual content - monitoring content requires greater justification    than monitoring flow of communications.
  
  
• whether it would have been possible to establish a monitoring system based on less intrusive methods
  
  
• the consequences of the monitoring for the employee and the use made by the employer as a result of the monitoring
  
  
• whether the employee had been provided with adequate safeguards, especially where the monitoring was intrusive

Top Tips for Employers

In the UK, the monitoring of employees is heavily regulated by existing legislation, which places limitations on the powers of employers to monitor their employees' private communications, including the Data Protection Act 1998.

The factors set out by the Grand Chamber reflect the steps that you are currently recommended to carry out under the Information Commissioner's Employment Practices Code before monitoring communications.

• You should ensure that you have clear IT and data protection policies.
  
• You should notify your employees if their internet use may be monitored and if this extends to the content of their communications. 
  
• You should ensure that your policies are justifiable with regard to the factors laid out in the Information Commissioner's Employment Practices Code.  

For further information, please contact Nick Murrell, in our Employment Law team, on 0117 314 5627.