Employment e-Brief: Employers’ right to monitor Employees’ Use of the Internet

Thursday 14th January 2016

The European Court of Human Rights (“ECHR”) has handed down its decision in the case of Barbulescu v Romania confirming that an employee’s right to respect for private life and correspondence is not breached if employers monitor employees’ personal communications at work.

Mr Barbulescu was an engineer who had used his business Yahoo Messenger account to send and receive personal messages with his fiancée and brother, as well as professional ones. This was in breach of his employment contract and on discovering the messages his employer dismissed him in 2007. Mr Barbulescu lost his case in Romania’s domestic courts and appealed to the ECHR. Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds that it infringed his Convention rights to privacy.

The ECHR held that while Article 8 (right to respect for private life and correspondence) was engaged, the Romanian courts were entitled to look at the evidence before them in deciding whether the dismissal was justified. The court had to examine whether Romania, in the context of its positive obligations under Article 8 had struck a fair balance between Mr Barbulescu’s right to respect for his private life and correspondence and his employer’s interests. The court found that it was not unreasonable for employers to seek clarification that employees were completing their professional tasks during working hours.

It had been swayed by the fact that the Romanian court judgment had not revealed the precise content of the personal messages, but only the fact that they were personal messages and this was enough.

The judges said “The employer acted within its disciplinary powers since, as the domestic courts found, it had accessed the Yahoo Messenger account on the assumption that the information in question had been related to professional activities and that such access had therefore been legitimate. The court sees no reason to question these findings.”

The ECHR decision binds all countries that have ratified the European Convention on Human Rights, which includes Britain. Sophie Wilson at Gordons says “This judgment is in line with UK laws and past cases and is not particularly surprising. The employer had expressly banned employees from sending personal messages at work and so were in their right to issue disciplinary proceedings against the individual for breaching their rules and regulations. This judgment just highlights the importance of having well-drafted employee-monitoring policies in place which employers can rely on to discipline employees should they breach rules and regulations at work.”

For more information on how our employment team can help draft appropriate policies to protect your business, please contact Sophie Wilson or another member of our team.