Be careful what you read

Monitoring an Employee's Internet Use

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 enquiries.

The Company's internal policies and procedures contained an express prohibition against employees using company equipment (computers and telephones) for personal use. 

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 life.

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 8.

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 hours.

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 personal use.

In addition UK Legislation, including the Data Protection Act 1998 (DPA) regulates an employer's powers to monitor an employee's personal data.

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 monitor).
  • 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 monitoring techniques.
  • Keep all policies and procedures up to date and ensure managers are trained generally in relation to disciplinary and dismissal procedures. 
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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