As widely reported a couple of weeks ago the European Court of Human Rights has handed down a significant judgment in the Romanian case of Barbulescu which confirms the right of employers to access the private communications of employees while they are at work.
Mr Barbulescu, a Romanian national living in Bucharest, worked for a private company as an engineer in charge of sales from August 2004 to August 2007. At his employer’s request he set up a Yahoo Messenger account to be used as a means of replying to clients’ enquiries. On 13 July 2007 he was informed that his Messenger communications had been monitored from 5 to 13 July and this revealed that he had been using the account for personal purposes. Mr Barbulescu countered by suggesting that the monitoring of the account was criminal activity. The analysis showed that he had exchanged messages with his fiancé and his brother and the messages related to personal matters including his personal health and sex life. His employment was terminated on 1 August 2007 for breach of the employer’s regulations which included a ban on using electronic media for personal purposes.
Mr Barbulescu brought a claim in the Bucharest County Court and failed on the basis that the employer’s regulations were not illegal and correct procedures were followed. He appealed and sought to rely on Article 8 of the European Convention on Human Rights (right to respect for family and private life). The Bucharest Court of Appeal again found in favour of the employer. In the ECHR it was noted that Mr Barbulescu alleged that his personal Yahoo Messenger account had been accessed by the employer in addition to the analysis of the work account. He maintained that he was entitled to expect privacy, given the very nature of the software in question.
There was a balance to be struck between respect for the individual’s private life and correspondence and the employer’s legitimate interests as a private company. the domestic courts had found that the applicant had used Yahoo Messenger on the company’s computer and that he had done so during working hours. This is what established the disciplinary breach and the consequent lawful termination of employment.
The employer had acted within the scope of its disciplinary powers. It was not unreasonable for an employer to want to verify that its employees are completing their professional tasks during working hours. Further, the employer’s monitoring was limited in scope and proportionate.
However the decision should not be seen as providing carte blanche for employers to snoop on their employees’ private communications. As I have set out above the monitoring undertaken in this case for defined and legitimate reasons. It did not last any longer than necessary and was used to gather evidence relevant to the resulting disciplinary process. It is reasonable to assume that routine monitoring would be much more difficult to justify. As indicated in a number of cases, one way in which employers can demonstrate good practice and minimise risk is to provide a specific phone and perhaps a specific computer which may be used for (limited) personal communications. This would make it much harder for employees to justify personal communications by other methods and those allocated for personal communications would not be monitored unless there was a compelling reason to do so. It is also important to remember that, in this case, there was an absolute ban on using the employer’s facilities for personal communications and that was held to be fair in the Romanian court, thereby enabling the dismissal to be fair because of the breach of an absolute ban. In most British cases employers ask their employees to keep personal communications to a minimum so that establishing a breach would not in itself establish effective grounds for dismissal.