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Right to privacy: monitoring employee messaging accounts at work

Employee internet usage at work is likely to be an area of concern for many employers. A recent European Court case considered the interplay between the employee’s right to privacy regarding what they say or do online at work, and the employer’s right to monitor that.

Article 8

Article 8 of the European Convention on Human Rights provides the right to respect for correspondence and protects the confidentiality of private communications including letters, emails and telephone conversations at work. In Halford v UK [1997] ECHR 32, the employer was found to have breached Article 8 by phone tapping an employee’s calls after she had been told her calls would not be monitored. In Copland v UK [2007] ECHR 253 the employer breached Article 8 where there was no IT policy in the workplace and the employee was not told that they might be monitored.

Bărbulescu v Romania – 61496/08 [2016] ECHR 61

At his employer’s request, Mr Bărbulescu set up a Yahoo Messenger account to deal with client enquiries. He also used the account to send personal messages to his brother and fiancée, in breach of his employer’s rules prohibiting the use of company computers, the internet and telephones for personal use. The company monitored his Yahoo Messenger communications (which included messages on his personal Messenger account) and, following an investigation, dismissed him for unauthorised use of the internet.

European Court of Human Rights

Mr Bărbulescu brought an unsuccessful unfair dismissal claim in the Romanian courts and then a claim against the Romanian government in the European Court of Human Rights (ECtHR), arguing that it had failed to protect his right to privacy and correspondence under Article 8.

Employee rights

The ECtHR dismissed the case, holding that Mr Bărbulescu’s Article 8 rights had been engaged, but that the interference had been proportionate within the state’s margin of appreciation. The ECtHR noted that, in the absence of a warning to the contrary, an employee has a reasonable expectation of privacy of telephone calls, emails and internet usage. However, in this case personal internet use was strictly forbidden. Although the employer had examined the Yahoo messages, they had done so following Mr Bărbulescu’s advice that the account only contained professional communications. The employer had not looked at any other data or documents on his computer.

The ECtHR considered the monitoring was limited in scope and therefore proportionate. Accordingly, the Romanian authorities struck a fair balance, within their margin of appreciation, between the employer’s interests and respect for the employee’s private life.

Unfair dismissal

This case is limited in scope, as it concerned whether the Romanian state (not the employer) had acted properly to protect the employee’s privacy in his unfair dismissal claim.

Most UK employers allow or at least tolerate some personal internet and telephone use at work, so the situation in Bărbulescu is less likely to occur. However, in order to reduce the risk of an unfair dismissal claim succeeding, an employer should put in place clear policies about an employee’s right to privacy and to communicate these to employees and avoid disproportionate responses to any breach.

UK employers should be mindful that the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 place important limitations on employers’ power to monitor their employees’ private communications. Setting out what is expected from the employee and employer in a policy can help to avoid problems arising and ensure that any issues that arise are dealt with consistently.

For more information any of the issues raised in this article, contact Sarah Henley by emailing shenley@lyonsdavidson.co.uk or phoning 0117 904 5811.

Posted on Mar 21st, 2016 by Lyons Davidson