January 29, 2016

Monitoring of Employee Communications

In Barbulescu v Romania 61496/08 [2016] ECHR 61, the European Court of Human Rights (ECHR) considered whether an employer’s monitoring of an employee’s private communications had breached his right to privacy under the European Convention on Human Rights.

Mr Barbulescu, a Romanian national, was employed as an engineer in charge of sales. His employer had in place a policy prohibiting the use of company resources (including computers) for personal use. At his employer’s request, he set up a workplace Yahoo Messenger account to communicate with customers, which he also used to exchange personal messages to his brother and fiancée. Following a disciplinary process, he was dismissed for breach of his employer’s policy. The Romanian national courts found his dismissal to be lawful.

Before the ECHR, Mr Barbulescu claimed that the monitoring of his personal communications had breached his “right to respect for his private life and family life, his home and correspondence” under the European Convention on Human Rights. The ECHR disagreed. It found that a fair balance had been struck between Mr Barbulescu’s right to private life and correspondence, and his employer’s need to protect its interests. The ECHR found that it had not been unreasonable for the employer to monitor Mr Barbulescu’s Messenger activities to ensure that he was carrying out his work during working hours, particularly since the Messenger account had been accessed in the belief that it contained client-related communications.

Contrary to what many media reports have stated, this decision does not give employers an unfettered right to monitor their employees’ communications; in reality, it has no impact on existing U.K. legislation on this issue. Any employers considering such monitoring should ensure they follow the guidance of the U.K.’s Information Commissioner and seek legal advice as needed.

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