Employers must be careful not to believe everything they read in
the press. Media reports on a recent decision of the European Court
of Human Rights could lead employers to believe they have virtually
unlimited powers to monitor private emails of their employees.
Whilst this is not true, the case has highlighted the need for
employers to understand the correct legal position, and provides an
opportunity for employers to check they have the appropriate
systems in place to meet their business needs.
Mr Barbulescu was employed as an engineer in charge of sales for
a company based in Bucharest. His employer asked him to create a
Yahoo Messenger account for the purpose of answering enquiries
received from clients. Some three years into his employment, he was
informed that the company had been monitoring his Yahoo Messenger
usage during the previous week. Mr Barbulescu stated, in writing,
that he had only used the account for professional purposes. In
response, the company produced an extensive transcript which showed
personal exchanges between Mr Barbulescu, his brother and his
fiancée. Mr Barbulescu's employment was terminated for
breach of the company's policy which stated:
"It is strictly forbidden to disturb order and
discipline within the company's premises and especially... to
use computers, photocopiers, telephones, telex and fax machines for
Mr Barbulescu was unsuccessful when he challenged his
employer's decision in the Bucharest Courts on the grounds that
his privacy had been violated.
In his appeal to the European Court of Human Rights, Mr
Barbulescu relied on Article 8 of the European Convention: the
right to respect for private and family life, the home and
correspondence. Whilst they found that Mr Barbulescu's rights
under Article 8 had been engaged, they concluded, by six votes to
one, that there had been no violation of this right. The Court held
that it was not unreasonable for an employer to want to verify that
employees were completing work tasks during operating hours.
Furthermore, the Yahoo Messenger account had been created for
business use and his employer accessed the account in the belief
that it contained only work-related correspondence.
To what extent can employers monitor their employees?
The media's reaction suggests that the Judgment awards new
infinite powers to employers to monitor their employees. Whilst Mr
Barbulescu's case has perhaps made employers more aware of the
channels which are available to them, it has not changed things
from a legal perspective. Employers are entitled to monitor their
employees; however, this should be limited in scope and should be
proportionate. Employers should be made aware that their
communications may be monitored. A fair balance must be struck
between an employee's privacy rights and the business interests
of the employer. Going beyond what is required could infringe
employees' data protection rights.
Why a communications and monitoring policy is essential
It is worth bearing in mind, however, that there are numerous
scenarios which were not explored in the present case, for example,
if an employee accesses a personal email account from their work
computer, can those emails be read? What if an employee is working
on a case remotely from home, can personal messages sent from their
work account late in the evening be read? What about personal
messages sent in-between meetings from a work phone during working
time? The advancements in technology have undoubtedly blurred the
lines between personal and work life, and as a first step employers
should ensure they have a clear policy on email use which takes the
realities of modern working practices into account.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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