The end of privacy in the workplace

The recent case of Bărbulescu v Romania has spread fear through workers across the EU after it was reported as giving employers free reign to access workers’ personal messages.

In this case, Mr Bărbulescu’s employer presented him with a transcript of private messages that he had exchanged with close family members relating to his health and sexual life. These messages ultimately led to his dismissal. After unsuccessfully challenging his dismissal through the Romanian courts, Mr Bărbulescu brought his claim to the European Court of Human Rights claiming that the termination of his employment was based on a breach of his right to privacy under Article 8 of the Human Rights Act. Despite the highly personal and sensitive nature of the messages the court found the monitoring of such messages to be reasonable. But is there really cause for concern?

The first point to note is that Mr Bărbulescu sent the messages during working hours via a Yahoo Messenger account which he had set up for the purpose of responding to client enquiries. The employer had therefore thought that the account would contain client-related communications only. It is also important to note that his employer had clear policies in place prohibiting the personal use of company resources. Mr Bărbulescu was clearly in breach of this provisions for which his employer was entitled to take disciplinary action.

Article 8 of the Human Rights Act gives individuals a right to privacy in the workplace. However, this is not and never has been an absolute right. The right can generally be interfered with provided that the interference has a genuine aim, goes no further than is needed and ultimately balances the rights of the employer against the rights of the worker.

The above case is not inconsistent with this.

Employers will need to continue to comply with their obligations to respect their workers’ right to privacy. They should therefore ensure that they have appropriate policies in place setting out the extent to which workers may use their resources. The policy should also define situations in which the employer is entitled to monitor communications.

Contrary to some headlines, workers will retain their right to privacy. However, where they are engaged in communications during working hours, on company resources and contrary to company policies they should be aware that employers may intervene. What this does not do is entitle employers to randomly access private messages on their workers’ personal devices just because they feel like it!