September 22, 2017

Monitoring employees’ private communications in the workplace

Private communication in the workplace

The facts

Bogdan Bărbulescu was employed in the Bucharest office of a Romanian private company as a sales engineer. He created an instant messaging account using Yahoo Messenger in order to respond to customers’ enquiries. The employer warned him that he should not send personal messages on that account, and explained that a staff member had been dismissed for using her work computer for personal use.

Mr Bărbulescu used the service to send several messages to his brother and his fiancé. He only admitted his wrongdoing after being presented with a 45 page transcript of the messages - some of which were of a more intimate nature! He was dismissed and appealed the decision through Romania’s courts.

Mr Bărbulescu claimed the dismissal was unfair because the company had no right to monitor his personal communications and had breached his right to privacy under Article 8 of the European Convention of Human Rights.

What did the courts think?

The lower courts initially sided with the company’s decision. However, an appeal to the Grand Chamber reversed the decision, stating that a right to privacy did not disappear at the doorstep of the workplace.

The European Court of Human Rights held that while Mr Bărbulescu was aware of the employer’s strict policy on computer use, his employer had not warned him that it would monitor communications and read his private messages. Failure to give advance notice of the extent and nature of the potential monitoring, which included a warning that it would read his messages, amounted to a breach of his right to privacy.

The European Court of Human Rights did not interfere with the decision to dismiss the employee, which was a matter for the local courts.

What does this mean for employers?

It seems extraordinary that an employee who blatantly ignored a warning not to use a designated work account for personal communications has won his human rights case. However, the decision shows that an employee’s right to privacy is an important right which cannot be overridden in the workplace without clear warning and justification.

The Bărbulescu judgment should not be regarded as an outright ban on employers monitoring employees' communications in the work place. It underlines the importance of striking a balance between the interests of the employer to ensure compliance with its rules and the smooth operation of its business and the human rights of the employee. Employers also have to carefully consider the reasons for intruding into an employee’s private life.

There is also a requirement for employers to communicate their policies to employees very clearly, and make sure they explain any anticipated measures particularly if these might interfere with an employee’s human rights.

Points for employers to consider

 Do you allow employees to access your computer systems for personal use?
 Do you have a clear policy on employee use of business computer systems and accounts?
 Do you business monitor computer use, including personal use of computers?
 Are your contracts of employment fit for purpose in this area?
 What other communications do you give to your employees?

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