Copyright Moore Barlow LLP (Moore Blatch and Barlow Robbins merged May 2020)

Check your IT user policies- are you monitoring staff usage appropriately?

A recent ruling by the Grand Chamber of the European Court of Human Rights (ECHR) in the case of Barbulescu v Romania will mean employers will have to be very clear with staff if they propose to monitor their internet usage. The case – which centred on a Romanian engineer who was sacked for sending messages about his sexual health via a work-related Yahoo messenger account – has set a legal precedent that employers across Europe should be aware of.

The ECHR had previously held that monitoring an employees’ internet usage and Yahoo messenger use during disciplinary proceedings was a proportionate interference with the employee’s right to privacy and family life, as stated in Article 8.

However, the ECHR subsequently overturned this decision and held that the employee’s Article 8 rights had been infringed due to the employer monitoring the content of the employee’s correspondence. The Strasbourg appeal court stated that the employer had failed to strike a fair balance between the employee’s right to a private life and his employer’s right to ensure he was following work rules. As a result, his right to privacy had been violated.

The ECHR judgement said that an employer “cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted as far as necessary.”

The judgment is complex but the key principle was that workers have a right to respect for privacy in the workplace, and if an employer is going to monitor their emails and messages, the employer should (exceptional reasons aside) tell the worker that their communications might be monitored. Here, although the employee knew it was forbidden to use work computers for personal purposes, he had not been told that the employer was monitoring his communications.

Following this ruling, employers should thoroughly check IT monitoring policies and make any necessary changes.


Share