This post was co-written by Sabrina English, Trainee Solicitor, Norton Rose Fulbright LLP, London
A recent decision of the Grand Chamber of the European Court of Human Rights has held that an employer had infringed an employee’s rights under Article 8 of the European Convention on Human Rights (the Convention) when it dismissed him for sending private messages via a work messaging system. This decision overturns the earlier decisions of the Fourth Section of the European Court of Human Rights and the domestic Romanian Courts (discussed in an earlier post) which had both ruled that there had been no violation of Article 8.
Whilst the employer had made it clear that the use of the company’s computers was forbidden for personal purposes, it was not made clear to the employee that his communications would be monitored. Mr Bărbulescu was asked by his employer to create an account on an instant messaging service in order to respond to customer queries. It transpired that he had used this service to send messages of a personal and sometimes intimate nature to his fiancée and brother, and his employment was terminated. He brought a claim under Article 8 of the Convention based on a breach of his right to respect for his private life and correspondence, which the court upheld in the most recent ruling. In doing so, the court has appeared to acknowledge that employees have some level of expectation of privacy regarding private communications made on a work device; “an employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.”
This ruling does not represent a huge shift in traditional thinking in this area of employment law, but does however highlight the importance of employers having a clear policy regarding the use and monitoring of the internet and emails. These policies must be communicated to employees at the start of their employment, and it should be ensured that they are kept up to date to reflect changes in modern communications and technology. In particular, both employees and employers need to be aware of how they use both personal and work devices. The court gave guidance as to the factors which should be taken into account, many of which are included in the guidance by the UK Information Commissioner. For example, staff should be encouraged to mark email messages as private or personal, when appropriate, so that, when monitoring use of the email system, employers will avoid opening personal emails unless there is a very good reason to do so.
The court is clear that an employer can take measures to monitor employees’ communications, but that these measures must be accompanied by adequate and sufficient safeguards against abuse, which should be set out clearly to employees in advance.
