Is My Employer Legally Allowed to Monitor My Private Messages?

Below, Claire Brook, an Employment Law Partner at Aaron & Partners LLP, talks to Lawyer Monthly about the recent case of Bogdan Mihai Barbulescu, and delves into the legal bindings of monitoring private messages in the workplace.

In 2016, the Chamber of the European Court of Human Rights (ECtHR) ruled that a Romanian employer did not act unlawfully or in breach of Article 8 of the European Convention on Human Rights (ECHR) when it monitored an employee’s Yahoo messenger, and ultimately dismissed him for sending private messages during work hours.

The claimant appealed this decision to the Grand Chamber of the ECtHR, which has now found in favour of the individual based on the right to respect for privacy, and reversed the judgement.

Bogdan Mihai Barbulescu was employed as an engineer by a heating company. In July 2007, Mr Barbulescu’s Yahoo messenger account was monitored by his employer, who found private messages that had been sent from Mr Barbulescu to his wife and brother, containing personal information including sensitive personal messages containing private content. Mr Barbulescu was subsequently dismissed for breaching the employer’s IT policy, by sending private messages during working hours.

Mr Barbulescu brought an unsuccessful claim challenging his dismissal, with the court ruling that the employer was entitled to monitor his messages. Following this decision Mr Barbulescu brought an unsuccessful claim in the ECtHR against the Romanian government, stating that they had failed to protect his Article 8 rights.

Mr Barbulescu appealed to the ECtHR Grand Chamber, which reversed the decision, finding that Mr Barbulescu’s Article 8 rights had been infringed and that previous courts had failed to strike a fair balance between the employer’s and the employee’s interests.

It ruled that workers have a right to respect for privacy in the workplace, and employees should be told that communications may be monitored.

In light of this judgement, employers should consider:

• Reviewing their policies to ensure that they have clear guidelines on the monitoring of an employee’s communications, notification of monitoring and the reasons for the monitoring.
• Ensuring that there is a policy clearly identifying what is permissible in relation to private communications, and how much personal use of phone and computer is allowed in the workplace.
• Ensuring that employees understand that their communications may be subject to monitoring if there is a good reason to do so, and the extent of the monitoring that could potentially take place.
• Confirming the potential consequences of any breach of the rules.
• Whilst this ruling does not completely prevent employers from monitoring their employee’s communications at work, it highlights that employers do not have the level of discretion to monitor communications that they may have originally thought. Employers cannot ‘reduce private social life in the workplace to zero’, the court confirmed in the judgement.