A Snooper’s Charter for Employers?

In a world of social media and never ending tweets or notifications employers may want to monitor what their staff are using their IT systems for. A recent European Court of Human Rights (ECHR) Judgment appears to give the green light for employers to undertake such monitoring even if it includes viewing messages of a personal nature. However, all is not as it seems and employers need to be very wary of putting monitoring in place.

On 12 January 2016 the ECHR handed down Judgment in the case of Barbulescu v Romania.  At the request of his employer Mr Barbulescu set up a Yahoo Messenger account to liaise with clients.  Mr Barbulescu also used this account to contact his brother and fiancée regarding personal matters including his health and sex life. Mr Barbulescu’s employer monitored this account without his knowledge and dismissed him for breaching the company’s regulations on personal use of company resources. Mr Barbulescu relied on his right to respect for private life under Article 8 of the European Convention of Human Rights to challenge this matter.

The ECHR have held that whilst Mr Barbulescu had breached his employer’s own policies Mr Barbulescu’s right under Article 8 had been engaged. However, the ECHR found that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours and in this case the employer had struck a fair balance between their own interests and Mr Barbulescu’s right to a private life.

Before all employers rush off to monitor their employee’s, whatsapps, snapchats and tweets coming through on company wi-fi they should note that this case related to an account set up for professional not personal purposes. The case therefore does not give any precedent that such monitoring would not breach Article 8 or indeed be reasonable.  The ECHR also commented on the fact that the monitoring involved was limited and proportionate.

What does this mean for employers?

Employers must therefore tread carefully if they choose to monitor their employees' internet use. A balance must be struck between their rights and those of their employee. Even then, the Courts will determine cases on a fact by fact basis and whilst bound to consider an ECHR judgment the UK Courts are not bound to follow it. Meaning whilst this case provides some guidance it in no way opens the flood gates for employer monitoring.

Employers should ensure they have relevant IT, Social Media and personal use of company facility polices in place. If employers want to undertake monitoring this should be documented in these polices and be compliant with data protection law. Prior to implementing any monitoring employers will still have to think carefully about all the circumstances involved and striking that balance.

If you are an employer and have any queries about this issue, please call us.