Employers Beware before ‘Spying’ on Employees!

Bosses
have limited rights to monitor employees’ private correspondence. Landmark
judgement delivered by the Grand Chamber of the European Court of Human Rights
in relation to monitoring of employees’ communications.

In a case decided last year, in the famous case of Barbulescu v
Romania, the ECHR had found that there had been no breach of the employee’s
right to privacy when his employer dismissed him over private messages sent at
work on the Yahoo messenger system set up by the same employer for work
purposes. The employee’s private online exchanges were being monitored and recorded
by his employer. Personal use, such as that made by the employee, was in
violation of the employer’s internal regulations. The employer had proceeded to
terminate his employment with the local Romanian county court, and the Court of
Appeal, declaring that his dismissal had been lawful.

The employee instituted proceedings before the ECHR claiming that
there had been a violation of his right to private life under Article 8 of the
Convention when the domestic courts had failed to revoke the decision of the
employer to terminate his contract, which decision was based on a breach of his
right to respect for his private life and correspondence.

The Court had held that
article 8 was indeed applicable to the present case, having regard to the
nature of the applicant’s communications and the fact that a transcript of
these communications had been used as evidence in domestic court proceedings.
The ECHR went on to determine whether the national authorities had struck a
fair balance between this right to private life and correspondence and the
interests of the employer. The ECHR considered that the courts had found that
the employee had committed a disciplinary offence by using the internet for
personal purposes during working hours. They also considered that the employer
had accessed the contents of the applicant’s communications after the employee
had declared that he had used the account only for work purposes. Moreover, the
monitoring activities had been limited only to the use of the Yahoo messenger.
It concluded that there had been no violation of article 8 of the
Convention.

Mr. Barbulescu’s case was referred to the Grand Chamber of the ECHR after
the Grand Chamber accepted his request for fresh consideration. The Grand
Chamber delivered its judgment on the 5^th September 2017. It noted
that the employee had indeed been informed of the ban on personal internet use
but it was not clear whether the employee had been informed before the
monitoring of his communications that this monitoring was to take place. It
also did not appear that the employee was informed in advance about the extent
and nature of the monitoring activities taking place or about the possibility
that the employer could have access to the actual contents of his
communications. The Grand Chamber concluded that the domestic authorities had
not offered adequate protection to the applicant’s right to respect for his
private life and correspondence which resulted in a violation of article 8 of
the Convention.

What is interesting to employers is the specific guidance given by
the Court to the national courts in order to determine whether monitoring of
employees’ communications was justified. The courts are to consider the
following:

• Notification
  in advance of the monitoring;
• Extent
  of the monitoring and degree of intrusion;
• The
  legitimate reason of the employer to implement monitoring;
• Whether
  a less intrusive system of monitoring was available;
• The
  consequences of the monitoring for the employees and the use made by the
  employer of the results of the monitoring;
• Whether
  the employee had been provided with safeguards which should ensure that the
  employer cannot access the actual content of the communications unless the
  employee had been informed in advance.

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