Can an employer, who is considering disciplinary action against an employee, monitor the employee’s email and internet activity (e.g. to find evidence or check if the disciplinary action is needed)? Or would that monitoring be unlawful under Article 8 of the European Convention on Human Rights (right to respect for private and family life, the home and correspondence)?
Bogdan Mihai Bărbulescu is a Romanian living in Bucharest. He was employed as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account to respond to clients’ enquiries. On 13 July 2007 he was informed by his employer that his Yahoo Messenger account had been monitored and that the records showed he had used the account for personal purposes.
Mr Bărbulescu replied that he had only used the service for professional purposes. He was then presented with a transcript of messages he had exchanged with his brother and his fiancée relating to personal matters such as his health and sex life.
On 1 August 2007 the employer terminated Mr Bărbulescu’s employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.
Mr Bărbulescu challenged his employer’s decision before the courts complaining that the decision to terminate his contract was invalid as his employer had violated his right to correspondence in accessing his communications.
His complaint was dismissed on the grounds that the employer had complied with the dismissal proceedings provided for by the local Labour Code and that Mr Bărbulescu had been duly informed of the company’s regulations.
Mr Bărbulescu appealed to the ECHR claiming that e-mails were protected by Article 8 (right to respect for private and family life, the home and correspondence).
The ECHR did not find it unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours. The monitoring of Mr Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach.
The ECHR decision confirms that employers do have the right to monitor employee internet use and communications. However, an important element of the case was that the employer had an internal regulation that prohibited the use of company resources for personal purposes, which the employee had breached leaving himself open to disciplinary action.
The key point for employers is that, if they wish to be able to monitor employee internet use and communications, it is important that employees are made aware that this may happen so as to ensure that employees do not have any expectation that their internet use and communications are private. This is usually communicated in a Policy on internet use, which sets out guidelines on what employees can and cannot do on-line and gives the right to the employer to monitor this for compliance and take disciplinary action as needed.
It is also important that employers use this right proportionately and only so far as necessary to verify compliance with the policy, and not for indiscriminate monitoring of private communications.
CASE OF BĂRBULESCU v. ROMANIA (Application no. 61496/08) 12 January 2016
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