Case law: Employers' rights to read employees' electronic communications
Employers may monitor employees' private communications at work only if it achieves a legitimate aim, is limited in scope and is proportionate, following a ruling from the European Court of Human Rights.
This update was published in Legal Alert - February 2016
Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.
Please note: A newer article on this case was published in the October 2017 edition of Legal Alert following subsequent developments in the legal process.
An employer in Romania had a strict computer and communications policy which prohibited employees from using work email and other communications systems for private purposes.
The employer asked an employee to set up a Yahoo Messenger account for communicating with customers. The employer monitored the account to make sure customers were being looked after properly and discovered that the employee was using it to communicate with his brother and fiancée during working hours. It dismissed him for breaching its policy and the Romanian courts upheld his dismissal.
The employee brought a claim in the European Court of Human Rights (ECHR) alleging that the Romanian courts had not addressed the issue of a breach of his human rights. He argued that the employer had, by monitoring his private communications, breached his right to privacy under Article 8 of the Human Rights Act (everyone has the right to respect for his private and family life, his home and his correspondence). He also argued that the monitoring was not a proportionate means of achieving a legitimate aim. For these reasons the Romanian court should have ruled his dismissal was void.
The ECHR found that whilst human rights law gave employees a reasonable expectation of privacy at work, this right was subject to an employer's legitimate objective of managing its resources effectively. Therefore, an employer could, if the circumstances justified it, be entitled to monitor employees' emails provided this was limited in scope and a proportionate means of achieving its legitimate objective.
The ECHR agreed with the Romanian court that in this case the employer had struck the right balance in its dealings with its employee, even though his private life and correspondence had been engaged, because:
- The employer's policy absolute prohibition of private communications was unambiguous and clear
- It was not unreasonable for an employer to check that its employees were working during working hours, including by monitoring their electronic communications
- The employer had accessed the employee's account to monitor his work-related messages, rather than to check for personal messages
- When it discovered personal messages, the employer did not reveal the contents or identities of the recipients, or look at anything else, such as other documents or data, on the employee's computer
- The results of the monitoring were only used in the context of disciplinary proceedings for breach of the employer's policy
Overall, these factors meant that the scope of the employer's monitoring in these circumstances was sufficiently limited in scope, and proportionate.
Parts of the press have claimed this case gave employers an unlimited right to read employees' electronic communications but this is not so. The case merely reinforces the existing legal principle in the UK that employers can monitor private communications provided the monitoring is limited in scope and is a proportionate means of achieving a legitimate aim – ie it strikes the right balance between an employee's general right to privacy and an employer's right to ensure its communication systems are not being abused.
An employer wishing to monitor an employee's private communications should:
- Ensure monitoring is necessary to protect its interests
- Ensure its policies clearly state:
- Which communications can be monitored, and when
- Who can carry out monitoring, and how it takes place, ensuring it is limited and proportionate
Case ref: Bărbulescu v. Romania (application no. 61496/08)
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.
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