Much ado about nothing: why the European Court ruling on employers spying on employees’ private communications is not what it seems

Many media outlets have reported this week that the European Court of Human Rights has issued a “landmark” ruling allowing employers to spy on employees’ private communications on social media. 

All is not what it seems. The case does not give employers free rein to access or monitor employees’ private communications; it was about an employee’s messenger account which was supposed to be used purely for work purposes. In any event, in the UK employers can already lawfully monitor the use of company devices and communications using company systems, as long as the monitoring is proportionate to achieve a genuine business need and does not intrude on genuinely private communications. 

In this case (Bărbulescu v Romania), the European Court of Human Rights Court was asked to decide whether the employer had breached an employee’s right to respect for his private life and correspondence when it monitored his Yahoo Messenger account.

Mr Bărbulescu (“B”) had been asked by his employer to create a Yahoo Messenger account to respond to client enquiries. Company rules stated that use of company computers for personal purposes was strictly forbidden. The employer later informed B that it had monitored his Yahoo Messenger communications over the previous week and records showed that he had used the internet for personal purposes in breach of company rules. B replied that he had only used it for professional purposes. The employer then presented him with a 45-page transcript of his messages with his fiancée and brother relating to personal matters, such as his health and sex life. B was dismissed for breach of the employer’s rules on personal use of the company’s computers.

B sued his employer in relation to his dismissal in the Romanian courts and contended that his employer had breached his right to respect for private and family life and correspondence. The courts dismissed his complaint, finding that his employer was entitled to monitor the use of work computers to check that work was being done properly and that B had been duly informed of the employer’s rules prohibiting use of company resources for personal purposes.

B applied to the European Court of Human Rights, arguing that his employer’s actions disproportionately infringed his Article 8 rights. The ECHR disagreed. Article 8 applied as the employer had accessed B’s communications on Yahoo Messenger, which included private communications, and the transcript of those communications had been used in proceedings before the Labour Courts. The issue was therefore whether the Romanian courts had struck a fair balance between B’s right to respect for his private life and correspondence and his employer’s interests.

The employer had accessed the Yahoo Messenger account in the belief that it contained professional communications only. It was not unreasonable for the employer to verify that employees were completing their professional tasks during working hours. This must be correct; an employer is entitled to verify that its employees are doing the job that they are paid to do.

As regards the use of the transcript in the Labour Court proceedings, it was clear that the transcript had only been used to the extent necessary to prove that B had breached company rules. In addition, whilst communications on his Yahoo Messenger account had been examined, other data and documents stored on his computer had not been, suggesting that the monitoring had been proportionate.

The decision in this case is neither surprising nor a “landmark” judgment as was reported, bearing in mind that the employer’s policy made it clear that employees were not allowed to use the company computer for personal purposes, the Yahoo Messenger account had been set up for work purposes and the employee denied using it for personal purposes when in fact he had been doing so during working hours. In the circumstances, the employee could not really have any expectation of privacy.

Contrary to some media reports, this case does not give employers free rein to monitor the private communications of employees, and it does not mean that there is no right of privacy in the workplace. It does not allow employers to access and monitor employees’ private emails and messaging apps which are purely personal. Employers are not entitled to monitor what an employee does on their personal phone during working hours, and employers should not monitor communications on an office mobile or other device that are clearly personal. Many employers allow some personal use of company systems for private purposes. Their employees are still entitled to expect privacy in their private communications, even if on work equipment. 

In this case there was disagreement between the employer and employee as to whether employee had been informed in advance that monitoring would take place. In the UK, the Data Protection Employment Practices Code deals specifically with monitoring at work. Employers who wish to monitor staff communications should identify a clear business reason for doing so, consider whether there are less intrusive ways of achieving that aim and make it clear in advance that monitoring will be undertaken, the form it will take and the reason why. All of this should be included in an electronic communications policy and notified to employees.