The European Court of Human Rights (ECHR) has overruled a previous decision inBarbulescu v Romania, which found a Romanian employer had acted lawfully when it monitored an employee’s personal Yahoo messenger account.
In an unusual step, an appeal was made by the Chamber of the ECHR (seven judges who take most of the decisions) to the Grand Chamber (17 judges and the final tier of the Court). The Grand Chamber found more in favour of the right to privacy and reversed the original ECHR decision.
It was reversed on the basis that the employee knew he was not allowed to use work computers for personal reasons, but he had not been explicitly told that the employer was monitoring his communications and how it was doing so.
As a result of the decision, workers have a right to expect privacy in the workplace and employers need to be clear about their policies on monitoring staff messages.
‘Employers need to include in their policies very clear explanations as to what it is they’re going to monitor,’ said Sarah Dillon, Director at ESP Law. ‘If it’s just the number of communications and destination, that is going to be much easier to justify. But if they’re wanting to monitor the actual content of the emails, especially if some of the content is personal, they’re going to have to have quite good justification for doing that.
‘Employers need to be very specific where they allow some personal use, and where they are monitoring private emails. They also need to be clear over whether they are reading the content, because what this case is saying is that employees do have a right to a private life,’ added Dillion.
She concluded that all employers need to look at their policies and ask themselves whether they explicitly outline what and how they’re monitoring staff, and ensure that employees are given enough information about the policy. Employers should also consider what systems they have in place to monitor staff emails and communicate all of this to employees and managers.
The ECHR held that there had been a breach of Article 8 and the employee was entitled to compensation.
