The digital age
In today’s digital age most communication is made through a digital device such as a computer, laptop, mobile phone or tablet. We choose to send a text rather than speak to someone or send an email rather than a letter – and the workplace is no different. A lot of communications during work are made by e-mail rather than post. This is seen by most employers as the most cost effective and efficient way of communicating. It can also be used as a way to monitor employee performance and behaviour in the workplace, to keep track of communications going to and from an employee’s account. But is this a reasonable way of monitoring performance or is this a breach of our right to privacy under Article 8 of the Human Rights Act 1998? The European Court of Human Rights in the case of Barbulescu v Romania 2017 ECHR 754 considered this in detail.
The case facts
- Mr Barbulescu (Mr B) was an engineer in charge of sales.
- He set up a Yahoo email account purely for work purposes, to respond to customer enquiries.
- The company regulations, signed by Mr B in 2006, prohibited the use of company resources such as computers for private purposes.
- In 2007 the company issued a notice to employees stating that the employer had a duty to supervise and monitor employees’ work and take punitive measures against anyone at fault. Mr B signed this notice to acknowledge he had read it.
- Within a matter of weeks, Mr B was informed by his employers that they had been monitoring his email account and they had found evidence that he had been using his account for personal purposes. They did not specify whether they had actually read the content of the messages.
- Mr B denied these allegations saying he only used the email account for work related purposes.
- The employers responded by sending him a 45 page print out of emails taken from his account detailing a conversation between Mr B, his brother and his fiancé, some of which were of an ‘intimate nature’.
- Mr B wrote to his employers to say that he believed his employers had committed a criminal offence by breaching the secrecy of correspondence.
- Mr B was subsequently dismissed for breaching the company regulations.
- Mr B brought a complaint against his dismissal which was dismissed by the Bucharest county court.
- His appeal was also dismissed.
- Mr B then made an application to the European Court of Human Rights in Strasbourg, claiming his dismissal had been based on a breach of his Article 8 right to have respect for one’s private and family life, his home and correspondence.
In January 2016 the ECHR dismissed the application, stating that whilst his Article 8 rights were engaged there was no violation of them because a fair balance had been struck between his rights under Article 8 and his employer’s interests.
In June 2016 the case was referred to the Grand Chamber at Mr B’s request. It was heard in November 2016 and the judgement was issued in September 2017.
The majority judgement noted that ‘private life’ could include professional activities and that Mr B’s correspondence at work could be included in the meaning of Article 8 when it mentioned a ‘private life’ and ‘correspondence’.
The majority judgement considered that a member state had a positive obligation to ensure respect for private life and correspondence was upheld in the workplace.
The judgement noted that member states must be granted a wide margin of appreciation in assessing the need to establish a legal framework governing conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace.
However it then went on to say that this margin cannot be unlimited and that domestic authorities should ensure that any introduction of measures to monitor communications should be accompanied by adequate and sufficient ‘safeguards against abuse’.
The judgement pointed out six factors to be considered:
- Have the employers given clear notification in advance about the nature of the monitoring?
- Were all or only part of communications monitored? What was the duration of the monitoring, and how many people had access to the resulting information?
- Did the employer have legitimate reasons for the monitoring? If they are monitoring the content of communications this is more invasive and requires a bigger justification.
- Could the aim of the employer have been achieved by less intrusive measures and methods (e.g. without accessing the content of all email communications)?
- What were the consequences for the employee? What was the use of the monitoring and were the results used to achieve the declared aim of the measure?
- Were there adequate safeguards to ensure that the employer cannot access the actual content of communications unless the employee has been notified in advance?
The majority found in favour of Mr B in stating that there was a breach of Article 8 and the domestic court had failed to allow adequate protection to Mr B’s right to respect for his private life and correspondence.
Their reasons for this decision were:
- It did not appear that Mr B had prior warning that his emails might be monitored;
- He had not been notified and aware that the content of his messages might be accessed;
- Neither the domestic courts had considered the scope and degree of intrusion into Mr B’s private life in monitoring and accessing all of his correspondence and printing out his correspondence;
- Neither of the domestic courts had sufficiently considered whether there was any proper justification for such intrusive monitoring and had not considered whether this could have been achieved by less intrusive measures than accessing the content of the messages;
- The domestic courts had not considered whether the e-mails might have been accessed without Mr B’s knowledge;
- The consequence for Mr B was that he received the most severe disciplinary sanction and was dismissed.
Mr B was therefore successful in his application.
Some employers may feel this decision is too harsh against the background of the case where the employee knew he was going against company policy by using his work e-mail account to send personal emails in the workplace and when confronted about it he denied knowledge until he was shown the string of printed out emails as evidence.
On the other hand, some may also argue that his employers could have taken less intrusive measures during the course of their investigation. For example, was there a requirement to print out 45 pages of correspondence when accessing one message may have sufficed?
This case is useful for employers in that it sets out helpful guidance on how to go about reasonably monitoring employees’ use of work communication systems and the questions which should be asked when considering if an employer is acting reasonably in the circumstances.
These guidelines are generally the same standards that will apply under the General Data Protection Regulations to be introduced on 25th May 2018.
Employers are advised to take action, if they have not done so already, to put in place policies that comply with these guidelines and take steps to avoid certain pitfalls as happened in this case.
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Note: This article was first published on the Moray Employment Law website in September 2017.