Be careful what you read
Monitoring an Employee's Internet
Employers reading recent
headlines concerning a case decided in the European Court could be
forgiven for thinking that they have an absolute right to monitor
employees work related and e-mail accounts. Employers should
not rely on what they have read.
The decision which attracted
extensive and misleading media headlines was the case of
Barbulescu v Romania decided in The European Court of
Human Rights (ECHR).
The applicant, Mr Barbulescu
was a Romanian national who was employed by a private company from
2004 to 2007 as an engineer in charge of sales.
At the request of his employer
he had created a Yahoo Messenger account to reply to client
The Company's internal
policies and procedures contained an express prohibition against
employees using company equipment (computers and telephones) for
The employer discovered that
the Yahoo Messenger account had been used by Mr Barbulescu to send
and receive personal messages about his health and sex life in
breach of company procedures.
Mr Barbulescu was dismissed
from his employment and challenged the dismissal before the
national Romanian Court and following the rejection of his claim,
the European Court of Human Rights.
Mr Barbulescu argued that the
Romanian Court should have excluded all evidence of his personal
communication upon the basis that it infringed Article 8 of the
European Convention and the right to respect for private
The ECHR considered that a
number of issues including the fact that Mr Barbulescu had
committed a disciplinary offence by using his professional account
during working hours on the company computer for personal messages
and in breach of company regulations.
The ECHR took account of the
fact that the employer had accessed the employee's account with a
view to considering professional communications and had in that way
discovered the personal messages.
The ECHR held that Article 8,
which states that everyone has a right to respect for his private
and family life, his home and his correspondence was engaged but
that the employer had not acted in violation of Article
In this matter the employer's
monitoring was not unreasonable and the evidence relied upon had
been confined to the extent of the personal messages and not the
content of them or the recipients of them.
The employer had acted in a
proportionate way and in accordance with its own procedures.
The European Court of Human Rights recognised that it was not
unreasonable for an employer to seek to verify that employees were
undertaking their professional tasks during working
In general terms the European
Court of Human Rights case law recognises that individuals have a
reasonable expectation to a "private life" which extends to
personal telephone calls from work and e-mails sent from business
premises, however, the case of Mr Barbulescu is distinguished
because the company's internal policies and procedures expressly
prohibited the use of company equipment for personal use and the
employer's monitoring was reasonable.
The case does underline the
importance of having robust policies and procedures particularly in
relation to computer and telephone use. Here, however,
personal use was strictly forbidden whereas most employers in the
UK will adopt policies and procedures which allow for reasonable
In addition UK Legislation,
including the Data Protection Act 1998 (DPA) regulates an
employer's powers to monitor an employee's personal
The Data Protection Act and
existing case law derived from the European Court of Human Rights
both impose an obligation on the employer to advise employees that
personal data may be monitored. The ideal place for this
provision is in an internal policy or contract of employment.
Neither this provision or the Barbulescu decision entitles
employers to routinely monitor employees private communications
although, unhelpfully the media frenzy surrounding the Barbulescu
decision has suggested this is the case.
Instead a reasonable employer
is required to consider the reason for carrying out monitoring,
whether that reason is sufficient to justify an intrusion into an
employee's private life and whether the means of monitoring chosen
are proportionate to meet that need.
The Employment Practices Code
contains guidance on monitoring at work and good practice.
The Code embodies the themes identified above and also the
reasonable requirements that should be expected of an employer both
in internal policies and procedures and in the sensitive subject of
monitoring employees at work.
Practical steps an employer
may wish to take are as follows:
- Introduce (or review) an
electronic communications policy (including the right to
- Ensure new workers are
introduced to the policy on induction and that existing employees
are reminded of the terms of it on a regular basis.
- Ensure managers understand
the policy and are trained where necessary in relation to
- Keep all policies and
procedures up to date and ensure managers are trained generally in
relation to disciplinary and dismissal
Posted on: 01/02/2016
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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