Most workplaces are heavily reliant on IT and digital systems which improve the speed and versatility of communications for businesses. Whilst doing so it also provides workers with more opportunities for personal, non-work related, communication which employers often want to keep to a minimum.
The question of whether it is reasonable for an employer to monitor communication systems in the workplace is a constant tug of war between the employer’s legitimate right to protect their business data and prevent abuse of the systems, and the employee’s human rights; in particular Article 8 ‘Right to respect for private life and correspondence’.
In the particular judgement of Barbulescu v Romania the issue concerned an employee who had been using instant messaging on his work PC, for private communication, despite being aware that it was against the workplace rules and resulted in his dismissal from employment. In January 2016 the European Court of Human Rights judged that the monitoring of content in personal communication in the workplace was not a breach of human rights subject to applying the practice proportionately and within reason.
In a somewhat surprising turnaround the Grand Chamber of the ECHR has reversed the decision on appeal. The facts of the case are that whilst Barbulescu knew that use of the IT systems were forbidden for private use, he had not been notified that the content of the messaging service would be monitored. In the absence of him being able to mark the communication as private he had a right to believe that the correspondence would remain private. The monitoring of the communication was therefore a breach of his right to respect for a family life and correspondence. Additionally the Court noted that the employer had failed to take adequate precautionary measures to prevent there being a substantial interference with his right as many colleagues had seen the correspondence and open conversations about it followed. The employer ought to have limited access to the content to those who needed to know for the purposes of disciplinary proceedings.
Whilst this case deals with a messaging system the principle equally applies to personal emails, text messages, phones calls and potentially the use of certain websites. In order for employers to monitor and review the content of any communication it is not adequate to simply outlaw personal use, it follows that employers must have taken adequate steps to inform employees that there would be invasive monitoring in place and further that such monitoring is applied fairly.
Opsium’s advice is to check and re-draft your employee handbooks where necessary, make sure your data protection policies are up to date and crucially that there has been sound training provided to all staff who have any control mechanism to monitor the activities of other staff members to ensure that monitoring is controlled, proportionate, reasonable and kept as confidential as possible.