Monitoring Employees’ Messages

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Barbulescu v Romania

Mr Barbulescu was dismissed for breaching his employer’s rules on the personal use of the internet at work. On his work-related Yahoo account were found to be messages to his brother and fiancée about his health and sex life.

Was it right for the employer to have accessed those messages and for them to have been used in the disciplinary and subsequent court proceedings? Mr Barbulescu argued that there had been a breach of his right to respect for private life and correspondence.

The case went to the European Court of Human Rights which found against Mr Barbulescu. Although workers have a reasonable expectation of privacy at work, this isn’t absolute. The employer had a total ban on the private use of work equipment, and this was an important fact. It had accessed Mr Barbulescu’s Yahoo account (set up for work purposes) believing that it contained business-related messages only, and for the purpose of checking that Mr Barbulescu was fulfilling his work duties. This was a proportionate interference with his rights. The employer hadn’t accessed other data and documents stored on the computer, and the monitoring was therefore limited in scope and was proportionate.

So, far from living up to some of the headlines it generated, this case really came down to basic rules about monitoring and data protection. Yes, employers are entitled to check that their employees are fulfilling their working duties, but only if done properly and it’s proportionate. Making clear what your position is on private communications at work is the first step. Then it’s about having a clear monitoring policy that’s communicated and carried through.