Monitoring an Employee’s Emails Infringed His Private Life [Barbelescu v Romania]

Background

Mr Barbelescu, a Romanian national, was dismissed when his employer discovered that he had been using their email system for private use, sending a number of messages to his family. Prior to his dismissal, his employer had issued a notice to its employees, reminding them that an employee had recently been dismissed after she had privately used the internet and telephone. Mr Barbelescu claimed that by monitoring his emails, his employer had breached Article 8 of the European Convention on Human Rights, which concerns the right to a private life.

The European Court of Human Rights (ECtHR), in its decision last year, did not agree with him. The court said it was not unreasonable for an employer to want to verify that their employees are performing their work during working hours, and a fair balance had been struck in this case.

However, the ECtHR appeal court has now overturned that decision, finding that there had been a breach of Article 8 in Mr Barbelescu’s case. The appeal court’s decision focussed mainly on the manner in which the employer had gone about the monitoring. It found that Mr Barbelescu had not been properly informed in advance about the extent and nature of the monitoring.

The appeal court set out some factors to be considered when deciding whether the line had been crossed into unlawful monitoring:

  • whether the employee has been notified in advance that the employer might monitor correspondence;
  • the extent of the monitoring by the employer, and whether it is the flow of communications being monitored, or the actual content of the communications;
  • whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content;
  • whether the monitoring could have been less intrusive than directly accessing the actual content of the communications;
  • whether the employee was aware of what the monitoring would be used for, for example in disciplinary proceedings;
  • whether the employee had been provided with adequate safeguards, in particular whether the employer had accessed the content of the communications before the employee had been made aware of that possibility.

What does this mean for employers?

This case does not mean that employers cannot monitor employees’ communications. However, they should think very carefully about the way they do it. Employers should make sure that if they are going to monitor their employees in this way, they have a clear policy in place, which employees are made aware of, setting out exactly how monitoring will be carried out, and why. The policy should be applied consistently. In practice, bearing in mind the points that the appeal court made in this case, employers should think about what they are really trying to achieve by monitoring employees’ communications, and make sure that the steps they actually take go no further than is necessary, including whether they really need to access the actual content of the communications. Employers should also make sure that any data they obtain through monitoring is processed appropriately under the Data Protection Act.

JR BW July 2017

Jonathan Royle

Senior Associate