Monitoring Employee’s Use of the Internet

There has this week been a lot of press coverage of the case of Barbalescu -v- Romania, a case recently considered by the European Court of Human Rights (ECHR). This case considered whether monitoring the personal communications of an employee breached Article 8 of the European Convention on Human Rights (the right to respect for one’s private and family life).

The employee in this case used a business Yahoo Messenger account to send and receive personal messages. These messages were with his wife and his brother, about personal matters. The employer had a policy which prohibited personal internet use whilst at work. Upon accidentally discovering these personal messages, the employer took disciplinary action against the employee, and he was dismissed.

The Romanian court upheld the employer’s decision to dismiss Mr Barbalescu. The ECHR decided that, although Article 8 did apply here, the use of the personal messages in deciding to dismiss Mr Barbalescu was proportionate in the circumstances. What was also relevant here was that the Romanian court did not disclose the actual contents of the personal messages, simply that they were personal (ie non work-related). The ECHR noted that employers need to be able to confirm that employees are actually working during working hours; furthermore the monitoring was limited in its scope.

Not all of the coverage in the media has been entirely accurate, with some reports suggesting that the ruling gives employers the right to snoop on the personal email accounts of employees. Previous cases in the same court have made it clear that employees enjoy a reasonable expectation of privacy. Here in the UK we also have, amongst other laws, the Data Protection Act 1998, which restricts and limits the power of employers to monitor an employee’s private communications. Employers therefore still need to be very careful if they wish to view an employee’s personal communications.