UK: Big Brother Or Big Boss? (August 2016)

Employers must be careful not to believe everything they read in the press. Media reports on a recent decision of the European Court of Human Rights could lead employers to believe they have virtually unlimited powers to monitor private emails of their employees. Whilst this is not true, the case has highlighted the need for employers to understand the correct legal position, and provides an opportunity for employers to check they have the appropriate systems in place to meet their business needs.

Mr Barbulescu was employed as an engineer in charge of sales for a company based in Bucharest. His employer asked him to create a Yahoo Messenger account for the purpose of answering enquiries received from clients. Some three years into his employment, he was informed that the company had been monitoring his Yahoo Messenger usage during the previous week. Mr Barbulescu stated, in writing, that he had only used the account for professional purposes. In response, the company produced an extensive transcript which showed personal exchanges between Mr Barbulescu, his brother and his fiancée. Mr Barbulescu's employment was terminated for breach of the company's policy which stated:

Mr Barbulescu was unsuccessful when he challenged his employer's decision in the Bucharest Courts on the grounds that his privacy had been violated.

In his appeal to the European Court of Human Rights, Mr Barbulescu relied on Article 8 of the European Convention: the right to respect for private and family life, the home and correspondence. Whilst they found that Mr Barbulescu's rights under Article 8 had been engaged, they concluded, by six votes to one, that there had been no violation of this right. The Court held that it was not unreasonable for an employer to want to verify that employees were completing work tasks during operating hours. Furthermore, the Yahoo Messenger account had been created for business use and his employer accessed the account in the belief that it contained only work-related correspondence.

To what extent can employers monitor their employees?

The media's reaction suggests that the Judgment awards new infinite powers to employers to monitor their employees. Whilst Mr Barbulescu's case has perhaps made employers more aware of the channels which are available to them, it has not changed things from a legal perspective. Employers are entitled to monitor their employees; however, this should be limited in scope and should be proportionate. Employers should be made aware that their communications may be monitored. A fair balance must be struck between an employee's privacy rights and the business interests of the employer. Going beyond what is required could infringe employees' data protection rights.

Why a communications and monitoring policy is essential

It is worth bearing in mind, however, that there are numerous scenarios which were not explored in the present case, for example, if an employee accesses a personal email account from their work computer, can those emails be read? What if an employee is working on a case remotely from home, can personal messages sent from their work account late in the evening be read? What about personal messages sent in-between meetings from a work phone during working time? The advancements in technology have undoubtedly blurred the lines between personal and work life, and as a first step employers should ensure they have a clear policy on email use which takes the realities of modern working practices into account.

Big Brother Or Big Boss? (August 2016)

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