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14-01-2016

In BĂRBULESCU v ROMANIA, the European Court of Human Rights (ECtHR) had to determine whether an employer was entitled to monitor an employee’s private electronic communications.

B was employed from 1 August 2004 to 6 August 2007 as an engineer in charge of sales. He created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. He was told by his employer that these communications had been monitored and that the records showed that he had been using the messenger service for private purposes in breach of the company’s policies.

The employee argued that in accessing his private messages the employer was in breach of his Article 8 rights to privacy and therefore could not rely on the evidence in relation to disciplinary proceedings during which he was dismissed. The ECtHR disagreed.

The decision has attracted some rather hysterical headlines to the effect that this is a snooper’s charter and a decision which the UK is treaty bound to follow. That is not entirely correct.

In this particular instance, the Court recognised that Article 8 rights did apply. However, the employer legitimately believed that the Yahoo account was being used for work purposes. The private messages were relied upon by the employer only to the extent that they were necessary to show that the employee was in breach of the employer’s internal policies and the employer’s monitoring of the employee was limited in its scope.

The ECtHR concluded that the domestic courts had struck the correct balance between the employee’s expectation of privacy and the employer’s legitimate interests.

The decision will be taken into account by UK courts when considering similar issues. However, it is neither binding nor is it entirely at odds with the approach the English Tribunals have already taken when looking at issues of employee monitoring and privacy and it is very fact specific.

English Employment Law already recognises an employer’s right to monitor an employee’s use of workplace emails and internet usage subject to some very important checks and balances.

The Employment Appeal Tribunal has also demonstrated a willingness to rely on evidence which on the face of it might otherwise be a breach of the employee’s Article 8 rights (see for example Swansea City and County of Swansea v Gayle UKEAT/0501/12 and the covert videoing of employees).

If an employer thinks that this case gives them an unfettered authority to merrily trawl through their employee’s private emails, they are sadly mistaken.

This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.

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