Monitoring in the Workplace: What Can Employers Legitimately Do?

A recent judgement of the Grand Chamber of the European Court of Human Rights (ECtHR) has shed light on the level of online privacy an employee can legitimately expect in the workplace.

Background

Mr Babulescu, a Romanian engineer, was asked, by his employer to set up a Yahoo Messenger account for work purposes. The employer had a strict policy prohibiting employees from using company computers for personal use. However, in spite of its policy, it did not inform its employees that their e-mails and computer usage may be monitored by the company.

The company monitored Mr Babulescu’s Yahoo Messenger account and concluded that he was using it for personal reasons. He was found to be corresponding with his fiancé and his brother, with some of the message relating to his sex life and health. 

When first questioned about this issue, Mr Babulescu denied any wrongdoing and claim that his usage was compliant with company policy. However, the company presented him with 45 pages of evidence and he was later dismissed.

Mr Babulescu brought a claim, alleging that his right to respect for private and family life, (under the European Convention on Human Rights), had been infringed. The ECtHR agreed that his right was engaged but concluded that the Romanian Courts were entitled to examine the evidence to see if Mr Babulescu’s dismissal was justified.

Latest Position

Mr Babulescu appealed to the Grand Chamber of the ECtHR which concluded that he should have been warned in advance that his e-mails were being monitored and the extent of the monitoring. As he had not been warned, his right to privacy had not been protected. The Grand Chamber further concluded that an employee is entitled to some expectation of privacy in the workplace.

Interestingly, Mr Babulescu was not awarded any compensation by the Grand Chamber.

What lessons can be learnt?

For employers, the case reinforces the message that employee’s e-mails and computer use should not be routinely monitored or reviewed. Advance warning – through a comprehensive social media policy and/or clauses in an employee’s contract of employment – should be given if an employer wishes to exercise such a right. Equally clear guidance should be given to employees about the level and nature of any use which is permitted.

For employees, the judgement makes clear that some expectation of privacy is acceptable although this can be restricted. Any genuinely personal e-mails should be clearly marked so that an employer can have little reason for opening them. However, although this may prevent an employer from reading personal information it would not, for example, prevent disciplinary action being taken if an employee is in breach of any social media policy.

If you have any questions about the above or any aspect of employment law, please contact Debbie Sadler on 0118 957 5337 or at d.sadler@hewetts.co.uk.

Published on 20/09/2017

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