Last week the European Court of Human Rights held in Bărbulescu v Romania (Application no. 61496/08) that there was no 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 case has attracted a lot of media coverage and some rather sensationalist (and inaccurate) headlines. This case does not change the current law and it is certainly not the case that employees have no 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 relating to sensitive personal matters.

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 (ECHR). 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 ECHR Decision

The ECHR found that the applicant’s Article 8 rights were applicable to the facts of this case. This conclusion was based particularly on the fact that the content of the applicant’s IM communications had been accessed and that the transcript of these communications had been used in the court proceedings. However, in a majority decision the ECHR held that there had been no violation of Article 8 principally for the following reasons:-

1. it was not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours;
2. the applicant’s IM communications were examined but not the other data and documents that were stored on his computer - consequently the monitoring had been limited in scope and was proportionate; and
3. the domestic courts had struck a fair balance between the applicant’s right to respect for his private life and correspondence under Article 8 and the interests of his employer.

Impact

Privacy in the workplace is a hot topic and this decision was released in the same week that it was reported that a national British newspaper had caused outrage amongst its employees by installing heat-sensing monitors under their desks to monitor how much time they spent at their desks. However, it is important to remember that the proceedings before the ECHR were 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. Furthermore, the ECHR pointed out that its findings were limited to the monitoring of the applicant’s communications within the framework of disciplinary proceedings.

A private employer in the UK is not directly bound by the Convention. However, employment tribunals are, and 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 such a breach.

Of greater relevance and significance to private companies in the UK is the Regulation of Investigatory Powers Act (RIPA) 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 short, this guidance provides that an employer should carry 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, exceptionally, covert monitoring is justified). Provided that employers comply with the ICO’s Guidance, there is a good chance that the monitoring will be lawful.

Nonetheless, employers also need to bear in mind that if they overstep the mark when monitoring an employee’s electronic communications, the employee could have a claim for constructive dismissal on the basis that there has been a breach of trust and confidence.

So in short, this decision has not changed the position in relation to the monitoring of an employee’s electronic communications in the workplace and the starting position is that employees do have a (limited) right to privacy in the workplace. However, if employers comply with their obligations under RIPA and the DPA and have an eye to an employee's Article 8 rights, the monitoring of electronic communications in the workplace, within reasonable bounds, should be permitted.

Next steps

This case serves as a useful reminder to employers that, provided they have the right policies and procedures in place, monitoring of employees’ electronic communications will be lawful. Accordingly, we would advise taking the following steps:-

• Employers should check their standard contract/IT policy. The ECHR stated that, in the absence of a warning that monitoring will take place, an employee will have a reasonable expectation of privacy in relation to email and Internet usage. In this case, as well as the internal regulations prohibiting personal use of work computers, the employer had served a notice on employees warning that an individual had been dismissed for using work facilities for personal purposes and advising them that their activities were under surveillance (although the applicant denied having received it). Employers should advise employees (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, and if it is the case that emails and internet use etc will be monitored, employees must be advised of this. 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?
• Employers should carry out an impact assessment, as recommended by the Information Commissioner’s Guidance.
• 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?
• 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 and aim to limit the number of employees who will have access to these emails.