Employee privacy and monitoring

by Dechert LLP
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The Grand Chamber of the European Court of Human Rights (ECtHR) held in Bărbulescu v Romania (Application no. 61496/08) last week that there was a breach of the right to privacy where an employer searched the contents of an employee's instant messaging account, which demonstrated that he was sending personal messages during working hours, and dismissed him as a result. This reversed the previous decision of the Chamber of the ECtHR which attracted some rather sensationalist (and inaccurate) headlines in May 2016. However, this decision does not materially affect the current legal position in the United Kingdom and it is certainly not the case that employees have an absolute right to privacy in the workplace - as we explain in more detail in this OnPoint.

Facts

Mr Bărbulescu (the applicant), a Romanian national, was an engineer in charge of sales for a private company. He was asked by his employer to set up a Yahoo Messenger account in order to respond to customers’ enquiries. The employer's internal regulations expressly prohibited all personal use of its facilities, including computers and Internet access. The employer informed the applicant that IM communications had been monitored over a period of 8 days and had revealed that he had been using the Internet for personal purposes. This was denied by the applicant who was subsequently presented with a 45 page transcript of his communications which included communications with his brother and fiancée some of which were described as being of an intimate nature.

Following his dismissal for breach of his employer’s internal regulations, the applicant challenged this decision before the Romanian courts. Having failed there, he brought a claim before the European Court of Human Rights (ECtHR). He relied upon Article 8 of the European Convention of Human Rights (the Convention) which provides amongst other things for the right to respect for private and family life, the home, and correspondence. He complained that his employer’s decision to terminate his employment had been based on an interference with his right to privacy, that this interference had not been proportionate to the legitimate aim pursued – as is required to avoid a breach of the Convention - and that the domestic courts had failed to protect his rights.

The ECtHR Decision

In May 2016, the Chamber of the ECtHR held that Article 8 of the Convention was applicable to Mr Bărbulescu’s case – but that there had been no violation of Article 8. This led to numerous sensationalist headlines suggesting that employees had absolutely no right to privacy at work – which is not, and has never been, the case.

The Chamber’s decision was overturned on 5 September 2017 by the Grand Chamber of the ECtHR (the Grand Chamber is made up of 17 judges – as opposed to seven judges in the Chamber). Following an in-depth analysis of local and international law, the Grand Chamber of the ECtHR decided that member states have a positive obligation in respect of Article 8 and therefore held that the domestic authorities should ensure that the introduction by an employer of measures to monitor correspondence and other communications is accompanied by “adequate and sufficient” safeguards against abuse. It advised that the domestic authorities should consider a number of factors as relevant, and has highlighted these in the Q&A published in respect of the judgment (on 5 September 2017). The factors are:-

  • Whether the employee has been notified of the possibility that the employer might take measures to monitor correspondence and other communications, and of the implementation of such measures. For the measures to be deemed compatible with the requirements of Article 8, the notification should be clear about the nature of the monitoring and be given in advance.
  • The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy. The Grand Chamber of the ECtHR stated that a distinction should be made between monitoring of the flow of communications when compared to monitoring the content of communications. Whether all communications or only part of them have been monitored should also be taken into account, as should the question whether the monitoring was limited in time and the number of people who had access to the results.
  • Whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content. Since monitoring of the content of communications is a distinctly more invasive method, it requires what the Grand Chamber of the ECtHR describes as “weightier” justification.
  • Whether it would have been possible to establish a monitoring system based on less intrusive methods than directly accessing the content of the employee’s communications. The Grand Chamber of the ECtHR emphasised that this analysis would need to take place on a case by case basis.
  • The consequences of the monitoring for the employee concerned and the employer’s use of the results of the monitoring operation. Particular attention should be given as to whether the results were used to achieve the declared aim of the measure.
  • Whether the employee has been provided with adequate safeguards, especially when the employer’s monitoring operations are of an intrusive nature. Such safeguards should in particular ensure that the employer cannot access the actual content of the communications concerned unless the employee has been notified in advance of that eventuality.

The Grand Chamber of the ECtHR essentially found that the Romanian courts had failed to address most of these issues in determining Mr Bărbulescu’s claim – and awarded him non–pecuniary damages.

Impact

As we highlighted in our OnPoint in respect of the decision of the Chamber of the ECtHR in May 2016, this decision has not in reality changed the landscape for private employers in the UK. This is because:-

  • Mr Bărbulescu’s case was not brought against the employer but against the State of Romania. The applicant alleged that his Article 8 rights had been breached in the way in which his dismissal case had been handled by the national courts. A private employer in the UK is not directly bound by the Convention. However, employment tribunals adjudicating domestic employment disputes are bound by the Convention. This means that if an employee were to allege that the evidence on which the employer relied in unfair dismissal proceedings had been obtained in breach of Article 8, that evidence might have to be excluded if the Tribunal were to find that there had been a breach of Article 8.
  • UK employers must always operate the monitoring of electronic communications in accordance with the Regulation of Investigatory Powers Act (which sets out when interception of electronic communications is permitted despite the general rule that interception without permission is unlawful). Where the interception results in data being recorded in some way, the employer will also need to satisfy the requirements of the Data Protection Act 1998 (DPA).
  • The Information Commissioner has published guidance on monitoring in the workplace which is aimed primarily at employers who carry out some form of systematic monitoring although this guidance would also apply to an employer carrying out occasional monitoring (like the employer in this case). In summary, this guidance encourages employers to consider factors much like those the Grand Chamber ECtHR has identified in determining whether monitoring would be in breach of Article 8. It is especially important that the employer carries out an impact assessment to determine whether any adverse impact on monitoring can be justified by the benefits to the employer and others. This includes considering alternatives to or different methods of monitoring. Employers who can justify monitoring will generally not need to obtain an employee’s consent to the monitoring. The ICO’s Guidance also suggests that employers should consider how information collected through monitoring will be kept securely and handled in accordance with the DPA. Further, it states that employees should be made aware of the nature, extent and reasons for any monitoring (unless, in very exceptional circumstances, covert monitoring is justified). Provided that employers comply with the ICO’s Guidance, there is a good chance that the monitoring will be lawful.

Action

What this case highlights is that it can be lawful to monitor employee’s communications – but that this needs to be done with care. This is not least to ensure that the evidence an employer obtains will be accepted by the employment tribunal in any litigation which ensures about disciplinary action or dismissal - but also to avoid an employee arguing that the nature and scope of the monitoring entitle him/her to resign claiming to have been constructively and unfairly dismissed (as a result of the employers fundamental breach of contract in undermining the mutual term of trust and confidence). In terms of practical steps:-

  • Before conducting monitoring, employers should carry out an impact assessment, as recommended by the Information Commissioner’s Guidance, bearing in mind the factors identified by the Grand Chamber.
  • Employers should ensure that their employees have been clearly notified (whether in the contract of employment or the Handbook or both) of their policy in relation to their IT facilities being used for personal purposes. If it is the case that emails and internet use etc. will be monitored, employees must be advised of this (including that the content of emails may be read). It should also be made clear that, if employees use the employer's facilities for personal matters, they should have a limited expectation of privacy - e.g. an email marked 'personal’ and emails sent from a personal email account accessed on a work computer will also potentially be subject to monitoring. The employer’s disciplinary policy should also state that breach of the employer's IT policy could constitute gross misconduct.
  • Employers should consider why it is necessary to prevent employees using work facilities for personal purposes. Is it, for example, to encourage productivity in the workplace, to prevent damage to the company’s IT systems or to prevent employees engaging in inappropriate (and potentially unlawful) activities in the company’s name? The employer should satisfy itself that any monitoring it undertakes is focussed on helping it achieve the stated goal.
  • If an employer is considering monitoring the emails of an employee, it should remember that the monitoring should be proportionate. For example, can the search be limited to a certain timeframe? Is it necessary to search a personal email account as well as a work email account? Is it necessary to view the contents of the emails?
  • Employers should consider the right to privacy particularly carefully in the context of “Bring Your Own Device” schemes. Where an employee is using a personal device for work purposes, the employer should ensure that, if it intends to retain the right to access that device and review and/or wipe data on it, the employer respects the employee’s right to privacy and complies with its DPA obligations. There should be a BYOD policy which includes a warning to employees that their devices may be subject to monitoring (including personal communications); and
  • When compiling evidence for an internal disciplinary process or a tribunal hearing, employers should consider redacting/excluding potentially sensitive and irrelevant details to avoid unnecessarily embarrassing an employee or indeed others and aim to limit the number of employees who will have access to these emails.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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