Case update (1): Human rights and monitoring at work

What do we already know?

We updated you in our January 2016 Newsletter Human rights and monitoring at work on the European Court of Human Rights (ECHR) decision in Bărbulescu v Romania that an employee’s right to respect for private and family life was not breached if their employer monitored their personal communications at work as long as it was carried out in a reasonable and proportional manner.

The employee, Mr Bărbulescu, appealed against the decision to the Grand Chamber of the ECHR.

What’s new?

The Grand Chamber of the ECHR has reversed the lower level ECHR’s decision that monitoring an employee’s personal communications at work was not in breach of the employee’s right to respect for private and family life.  Its decision is available here.

Although the Grand Chamber did not find that all monitoring was in breach of an employee’s rights, it did decide that employers may only monitor communications in very limited circumstances and that, if they are considering doing so, they should take into account the following:

  • Notice: employers need to give employees prior notice that they may take measures to monitor correspondence, and be very clear about the nature and extent of such measures;
  • Degree of intrusion: employers need to consider whether:
    • only certain messages (as opposed to all correspondence) need to be monitored and whether to limit both the duration of the monitoring and the number of people who have access to the results; and
    • it would be possible to carry out the monitoring using less intrusive methods.
  • Legitimate reason: employers need to set out a legitimate reason to justify the monitoring and for accessing content;
  • Consequences: employers need to consider the consequences of the monitoring for employees subjected to it; and
  • Safeguards: employers need to establish adequate safeguards for employees (i.e. employers cannot access the actual content of the communications unless the employee has been notified in advance).

Implications:

This is a useful decision (although not the most helpful for employers!) as it sets out clear guidelines on what employers need to consider when monitoring employees’ communications and we recommend the following:

  • Review policies to ensure that they clearly set out what is allowed in the workplace, including:
    • explanation that the employer intends to monitor employee communications;
    • specific details of the nature and extent of any monitoring, including whether the content of employee communications may be monitored;
    • that, if employees use the employer’s facilities for personal matters, they should have a limited expectation of privacy; and
    • that breach of the employer’s IT policy on use for personal correspondence could constitute gross misconduct.
  • Carry out a risk assessment addressing all of the points raised by the Grand Chamber of the ECHR (as set out above) to decide whether the proposed monitoring is lawful and proportionate.