Employees’ rights to privacy at work – what are they in the light of a recent case?

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Posted in:HR and Employment|January 15, 2016 | Join the mailing list

We examine the Barbulescu v Romania case about the right of employers to monitor employees’ private communications at work and ask: does the case change employees’ rights to privacy at work?

One of the major employment law news stories of this week is the judgment of the European Court of Human Rights (ECHR) in Barbulescu v Romania in relation to a case about privacy in the workplace.

In the EU, individuals have the “right to respect for [their] private and family life” under Article 8 of the European Convention on Human Rights. The right is not absolute – there are occasions when it can be interfered with, but only in certain limited circumstances, which may include an employer’s monitoring of private communications.

In Mr Barbulescu’s case the ECHR held that the employer had been justified in its monitoring of his private emails and there had been no breach of Mr Barbulescu’s right to respect his private and family life.

Mr Barbulescu was asked by his employer to set up a Yahoo Messenger account to communicate with customers. The company had a policy that clearly stated employees were not permitted to use company computers for personal use. The employer had monitored Mr Barbulescu’s activity on Yahoo Messenger for a week in order to check on the work he was doing and found that he had sent and received personal messages. When confronted about it, Mr Barbulescu denied that he had sent personal messages. His employer presented the transcripts of his communications (which included messages to his fiancée) as evidence against him and ultimately it dismissed him.

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When is it ok to monitor employees’ communications?

Employers can monitor their employees as long as any monitoring is for a genuine business reason or risk and provided that the monitoring carried out is proportionate to that reason or risk. However, employers must have the contractual right to do so and employees must be made aware of the possibility of monitoring, when it may occur and for what reasons. So, the right must be clearly set out in policies and employment contracts.

Does this case change the law on employers’ rights?

The short answer is no. Rather than some sort of attack on individuals’ right to a private and family life, enabling employers to “snoop” where they weren’t allowed to before, the decision actually reflects the current state of UK law on this issue.

Employees have not had their right to respect for private and family life taken away by this decision, but they may not have been aware that not only can their employer monitor their activities and communications, it may also have the right to see and use the content of their personal communications in relation to disciplinary proceedings.

The Barbulescu case should remind employers to check their employment contracts and staff handbook policies and undertake training so that their employees know what is expected of them and will not be surprised by the consequences of breaking the rules.

For more information: The Information Commissioners’ Office publishes the Employment Practices Code which deals with the subject of monitoring in detail (at Section 3) – you can find it here.

For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact Michelle Gray or Kim Freeman-Smith of the berg Employment team on 0161 833 9211 or by email at michelleg@berg.co.uk or kimf@berg.co.uk.

Follow us on Twitter: @Berg_HR @MichelleGEmpLaw @Berg_KimFS

(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.)

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