Monitoring internet use in the workplace – is there any expectation of privacy?

27 September 2017

Most workers expect that their employers monitor their internet use in the workplace but a recent appeal (Bărbulescu v Romania) to the European Court of Human Rights has highlighted that the law must strike a fair balance between the employer’s interests and the employee’s right to privacy enshrined under Article 8 of the European Convention on Human Rights. The Court found that Mr Bărbulescu’s employer had acted unlawfully when it dismissed him for sending personal messages via the Yahoo Messenger facility during working hours and that the domestic courts in Romania had failed to comply with their obligation to protect his right to privacy.

Monitoring internet use in the workplace – is there any expectation of privacy?

Mr Bărbulescu worked as a sales engineer in Bucharest. At his employer’s request, he created an instant messaging account using Yahoo Messenger, to respond to customers’ enquiries. The employer’s internal policy prohibited the personal use of computers but did not contain flag the possibility that the company may monitor employees’ communications. Mr Bărbulescu was informed by his employer that his Yahoo Messenger communications had been monitored and that there was evidence that he had used the internet for personal purposes, in breach of the internal regulations. During the disciplinary process the employer produced some forty five pages of messages which Mr Bărbulescu had exchanged with his brother and his fiancée; the messages related to personal matters and some were of an intimate nature. Mr Bărbulescu was dismissed and challenged his dismissal in Bucharest County Court arguing that his communications in the workplace were protected by Article 8 of the Convention which provides that ‘Everyone has the right to respect for his private and family life, his home and his correspondence'. The Court rejected his claim and his appeal was also unsuccessful.

Mr Bărbulescu complained to the European Court of Human Rights and in January 2016, it dismissed the application noting that the employer’s internal regulations strictly prohibited employees from using company computers and resources for personal purposes.  Unperturbed, Mr Bărbulescu submitted a further appeal. He argued that, since he had created the Yahoo Messenger account in question and was the only person who knew the password, he had had a reasonable expectation of privacy regarding his communications. He also asserted that he had not received prior notification from his employer about the monitoring of his communications.

The Court emphasised that Article 8 guarantees a right to “private life” in the broad sense and that it is in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity to develop relationships with the outside world. In principle telephone calls made or received on business premises may be covered by  Article 8 and the same applies to emails sent from the workplace and information derived from the monitoring of a persons’ internet use.

Critically the court found that Mr Bărbulescu was not clearly informed in advance of the extent and nature of his employer’s monitoring activities or of the possibility that the employer might have access to the actual contents of his communications. This was compounded by the fact that the employer also accessed his personal Yahoo Messenger account. The Court concluded that the domestic authorities had not afforded adequate protection to Mr Bărbulescu and that there had been a violation of Article 8 of the Convention.

Employers must ensure that staff are clearly notified in advance of the possibility that the employer might take measures to monitor correspondence and communications and workers should have no expectation of privacy when using company resources. The extent of the monitoring by the employer, whether there are legitimate reasons to justify monitoring of communications and the proportionality of accessing actual message content must be assessed on a case by case basis and may impact upon the fairness of any dismissal.

Employers should always seek legal advice to ensure compliance with unfair dismissal legislation. Louise McAloon is a Partner specialising in employment law in Worthingtons Solicitors, Belfast. For advice please telephone 028 90434015 or email louise@worthingtonslaw.co.uk

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