Case law: Employers reminded of importance of telling employees before monitoring their electronic communications

An employer wishing to monitor an employee's private communications should, in assessing whether monitoring is to achieve a legitimate aim and is sufficiently limited and proportionate, ensure the employee is told of the possibility that their online activities may be monitored.

An employer in Romania had a strict computer and communications policy prohibiting employees from using work email and other communications systems for private purposes.

The employer asked an employee to set up a Yahoo Messenger account to communicate with customers. The employer monitored the account to ensure customers were being looked after properly, and discovered that the employee was using it to communicate with his brother and fiancée during working hours. It dismissed him for breaching its policy and the Romanian courts upheld his dismissal.

The employee brought a claim in the European Court of Human Rights (ECHR), arguing that the employer had, by monitoring his private communications, breached his right to privacy under Article 8 of the ECHR. He also argued that the monitoring was not a proportionate means of achieving a legitimate aim.

The ECHR said that the relevant human rights law gave employees a reasonable expectation of privacy at work. However, this right was subject to an employer's legitimate objective of managing its resources effectively. Therefore, an employer could, if the circumstances justified it, be entitled to monitor employees' emails provided this was limited in scope and a proportionate means of achieving its legitimate objective. It found that the employer was justified in monitoring the employee's messages.

However, the Grand Chamber has now said that the Romanian national courts did not go far enough in striking a fair balance between the employee's right to privacy, and his employer's right to take measures that ensured the smooth running of the business. Particularly, they had not determined whether or not the employer had specifically told the employee that it might monitor him. This meant the scope of the employer's monitoring in these circumstances was not sufficiently limited in scope or proportionate, despite the following circumstances:

  • The employer's policy absolutely prohibiting private communications was unambiguous and clear.
  • The employer had accessed the employee's account to monitor his work-related messages, rather than to check for personal messages.
  • When it discovered personal messages, the employer did not reveal the contents or identities of the recipients, or look at anything else on the employee's computer.
  • The results of the monitoring were only used in the context of disciplinary proceedings for breach of the employer's policy.

Operative date

  • Now

Recommendations

  • An employer wishing to monitor an employee's private communications should, as part of its assessment of whether the monitoring is sufficiently limited and proportionate, ensure the employee is told of the possibility that their online activities may be monitored

Case ref: Bărbulescu v. Romania (application no. 61496/08)

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  • Made the process easy. Thorough but clear explanations given in a relaxed environment.