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16 February 2016 0 Comments
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Monitoring Employee’s use of the internet

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In a case which has engendered a lot of publicity since the decision was published, the European Court of Human Rights has held that monitoring employee’s personal communications at work does not breach the European Convention on Human Rights Article 8 right to respect for private life and correspondence provided it is undertaken reasonably.

The case of Barbulescu v Romania concerned an engineer who used his business yahoo messenger account, set up at the request of his employer to monitor client activity, to send and receive personal messages with his fiancée and his brother. These included messages about his health and intimate private life. This was in breach of his employment contract. When his employer accidently discovered this, he was questioned about the use of the account and said he only used it for professional purposes. Following a disciplinary hearing in which the text of the messages was used and it became evident that he did not just use the account for work purposes, he was dismissed. The transcript of the messages was made available to his colleagues, who discussed it publicly. He argued in the Romanian Courts that all evidence of his personal communications should have been excluded on the grounds that it infringed his European Convention rights to privacy.

The ECtHR held that, although the Article 8 right was engaged, the Courts were  entitled to look at that evidence to decide whether or not the dismissal was justified. A strongly influencing factor was that the Romanian Court Judgment did not reveal the content of the messages, only the fact that they were personal. The ECtHR recognised that employers need to be able to verify that employees are undertaking their professional duties during work hours and not spending their working time on personal matters.

The domestic Courts had placed a lot of importance on the fact that the employer accessed the messenger account genuinely believing that it only contained professional communications, as the employee had claimed it did. They had not placed any particular importance on the content of the messages except to the extent that they proved that there had been personal use of the professional messaging account contrary to what the employee asserted.

This decision does not give carte blanche to employers to look at all employee’s personal emails. It does not overrule previous ECtHR case law on a reasonable expectation of privacy, or UK legislation such as the Data Protection Act and the Investigatory Powers Act, both of which place important limits on the power of employers to monitor their employee’s private communications.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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