A turnaround on privacy in the workplace?
Privacy in the workplace is dead. Or so it was claimed in the media following the 2016 case of Bărbulescu v Romania, in which the European Court of Human Right (“ECtHR”) determined that it was lawful for an employer to have monitored an employee’s personal communications from a work email account. However, on appeal, there has been a change of view.
Mr Bărbulescu used his business email account to send personal communications, in breach of his employment contract. This was accidently discovered by his employers and ultimately led to his dismissal.
The ECtHR held that the Romanian courts were entitled to consider this evidence in deciding whether the dismissal was justified.
This case was appealed to the Grand Chamber of the ECtHR, which reversed the original decision, confirming that the employer’s actions in monitoring the email communication of its employee were unlawful.
The Grand Chamber held that the employer had “failed to strike a fair balance between the interests at stake: namely Mr Bărbulescu’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures in order to ensure the smooth running of the company, on the other”.
What does this mean?
This case doesn’t mean that there is a blanket prohibition on monitoring employees’ personal emails and communications. What it does mean is that employers need to make it clear to employees that monitoring might take place, and that there are adequate provisions in place to prevent abuse.
The ECHR has published some helpful Q&As dealing with the Grand Chamber’s decision
It’s clear that an employer who wishes to have the right to monitor an employee’s personal communications should:
- Ensure employees are clearly made aware of the extent to which monitoring of their communications might take place. Ideally this should be set out in their contract of employment, with reference to a full and detailed policy that is also provided to the employee;
- Consider carefully the purpose of the monitoring and its extent, as well as whether there might be a less intrusive way of monitoring. There is a difference between monitoring the volume of email traffic, for example, to monitoring the actual contents of emails. There needs to be a more pressing justification for the latter;
- Consider how employees can be protected, for example, by ensuring that monitoring is undertaken by a limited number of appropriate persons and is limited in time.
These considerations are not new, and represent good practice for all employers who wish to monitor their employees’ communications. Ultimately, as with much employment law protection, it’s about acting reasonably and in a way that is proportionate to the aim that’s being pursued.