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Be warned, you cannot always snoop on your staff's emails!

View profile for GRANT SHACKLESTON
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Introduction

The monitoring of staff use of IT systems, e.g. email and telephone, is often deemed necessary by an employer to ensure that its staff are working during working hours.  However employers in particular need to be wary of the risks of breaching an employee’s rights under Article 8 of the European Convention on Human Rights (‘ECHR’).  For example the employee has ‘a right to respect for his private life and family life, his home and his correspondence’ - previous case law has already determined that ‘correspondence’ includes letters, emails and telephone communications.  A very recent decision of the Grand Chamber of the European Court of Human Rights (‘ECtHR’) provides a real health warning to employers who look to monitor staff use of IT systems. 

The facts

Mr Barbulescu worked in Romania for a heating company as an engineer in charge of sales.  He had use of a Yahoo Messenger account provided by his employer to deal with client enquiries.  The employer’s IT policy strictly prohibited any personal use of its IT equipment.  The policy stated that the employer had the right to monitor its employees’ work and to punish for any breach of its policy.  However the policy did not expressly state that the content of the communications would be monitored or intercepted.

The employer monitored Mr Barbulescu’s use of the Yahoo Messenger account and subsequently accused him of using it for personal use.  Initially Mr Barbulescu denied this allegation, claiming he had only used Yahoo Messenger for business purposes.  The employer then produced a 45 page transcript of the Yahoo Messenger communications over a period of one week which covered intimate messages between Mr Barbulescu and his fiancée and also messages about his health.

Mr Barbulescu was dismissed from his job.  The Courts in Romania upheld the decision of the employer to dismiss him.

In 2016 the case was heard by the Fourth Section of the ECtHR.  It effectively backed the employer by finding that whilst Article 8 was applicable, the monitoring and use of Mr Barbulescu’s Yahoo Messenger account in disciplinary proceedings was a proportionate interference with his Article 8 rights.  It found that it was not unreasonable for an employer to want to verify that an employee was working during working hours! 

Mr Barbulescu then appealed further to the Grand Chamber of the ECtHR, which published its decision in early September 2017.

The decision of the ECtHR

The Grand Chamber of the ECtHR (by majority of 11 judges to 6) held that Article 8 was engaged and had been violated.  It set out some relevant factors in determining when monitoring by an employer may be justified and proportionate:-

  1. There should be unequivocal notification in advance about the monitoring of communications, including the possibility of the employer accessing the content of the messages. 
  2. The extent of the monitoring and the degree of intrusion should be limited.  For example the monitoring should perhaps be for a relatively limited period of time, and the number of people who have access to the results should be very limited.
  3. Whether the employer has legitimate reasons to justify the monitoring of the communications and accessing their actual content.  Could the employer have achieved its objective without accessing the content of the communications, e.g. by just noting the recipient, the title of the communication etc.
  4. The consequences for the employee and whether the results are used by the employer for its desired aim.
  5. Whether there are adequate safeguards for the employee, e.g. the employer cannot access the content of the communications unless the employee has been notified in advance of this possibility. 

Comment

The lessons to be learned by employers from this case relate to the fact they must have clear policies in place on the monitoring of their IT systems, which are clearly brought to the attention of staff before implementation. See more on Employee Rights for Employees.

The right to monitor should be limited and be no more than is reasonably required in order to achieve the employer’s legitimate business aim, e.g. to ensure that staff are doing their work during working hours.  If an employer wishes to monitor the content of the staff communications then it must expressly state so in its policies and make sure that there are adequate safeguards for the staff, e.g. limiting the period of monitoring etc.  The staff also need to be made fully aware of the possible consequences of breaching the policies, e.g. dismissal for personal use. 

In view of the consequences of getting it wrong (e.g. a possible claim for unfair dismissal/breach of Article 8 rights), you should get legal advice regarding the drafting of such policies.  If you need any information or advice on IT policies and the monitoring of communications then please contact the Chattertons Employment Team

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