Monitoring Employee Communications: What's The Story?

Keywords: employee personal email, employment, workplace monitoring, ECHR,

Employment law rarely makes the headlines but a recent decision of the European Court of Human Rights (ECtHR) on workplace monitoring has captured the attention of the global press, with many reports suggesting that employers now have free rein to monitor their employees' personal emails. Behind the headlines, however, the decision of Bărbulescu v Romania does not quite give employers the green light to snoop on staff and in fact follows established principles on individuals' rights to privacy in the employment context. Whilst some of the media coverage may be misleading, the decision is a healthy reminder for all employers, both in Europe and beyond, of the need for well drafted policies to allow the monitoring and review of employees' personal use of company IT systems.

In brief

Mr Bărbulescu was employed by a private company in Romania. At the request of his employer, he set up a Yahoo Messenger account for business purposes. The employer's regulations expressly prohibited the use of company equipment, including computers, for personal purposes. The employer informed Mr Bărbulescu that his Yahoo Messenger account communications had been monitored over eight days and the records showed that he had used the account for personal purposes. He denied this, saying he had only used it for professional purposes. In response, the employee presented him with a 45-page transcript of his communications on Yahoo Messenger, which included exchanges with his fiancée and brother relating to personal matters. He was subsequently dismissed for breaching the employer's internal regulations.

Following unsuccessful challenges to his dismissal in the Romanian courts, Mr Bărbulescu appealed to the ECtHR, alleging that the dismissal was based on a breach of his right to respect for his private life and correspondence under Article 8 of the European Convention on Human Rights. The ECtHR's decision was limited to the monitoring of Mr Bărbulescu's communications within the framework of the employer's disciplinary proceedings and the ECtHR sought to determine whether, in view of the general prohibition imposed by his employer, the applicant retained a reasonable expectation that his communications would not be monitored.

The ECtHR concluded that there had been no violation of Article 8 since the employer's monitoring had been limited in scope and was proportionate in the circumstances. It...