Monitoring of an employee’s use of the Internet and his resulting dismissal was justified

Every once in a while, an Employment related judgment provides copy editors with eye catching headlines. This has the knock on effect of ensuring that the decision is widely reported beyond the usual legal press. Often, this reporting is sensationalist and inaccurate and does not mean that the case in question has made strides in changing the law.

In the case of Bărbulescu v. Romania, the applicant was employed by a private company as an engineer in charge of sales. At his employers’ request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. Mr Bărbulescu’s employer had a clear policy banning staff from sending personal messages during working hours on the Yahoo Messenger Account. In July 2007, he was informed by his employer that his Yahoo Messenger communications had been monitored between 5 and 13 July 2007 and that the records revealed that he had used the service for inappropriate personal communication. Mr Bărbulescu maintained that he had only used the account for professional communications. The employer terminated his employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.

Mr Bărbulescu challenged his employer’s decision before the courts complaining of a violation of his privacy under the Romanian Constitution. His complaint was dismissed on the grounds that the employer had complied with their internal procedure and that the employee had been duly informed of the company’s regulations regarding monitoring electronic communications at work.

Mr Bărbulescu appealed claiming that e-mails were protected by Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention. In a final decision on 17 June 2008, the Court of Appeal dismissed his appeal and, relying on EU law, held that the employer’s conduct had been reasonable and that the monitoring of Mr Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach.

The European Court of Human Rights (ECtHR) in Strasbourg considered that the fact that the employer had accessed Mr Bărbulescu’s professional internet account and that the record of his communications had been used in the domestic litigation to prove the employer’s case was sufficient to engage the applicant’s “private life” and “correspondence”. It therefore found that Article 8 was applicable.

The Court did not find it unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours and noted that the employer had accessed Mr Bărbulescu’s account in the belief that it contained client-related communications. The ECtHR found Mr Bărbulescu’s compliant manifestly ill-founded.

This case follows an earlier ECtHR judgment (Copland v United Kingdom [2007]) which considered the monitoring of an employee’s telephone. The ECtHR concluded that Article 8 was infringed where:

  1. There was no information technology (IT) policy in the workplace.
  2. The employee was not told that they might be monitored.

These cases do not give an employer the unfettered right to monitor all private communications of an employee at work. The Information Commissioner’s Office guide to monitoring at work (ICO guide) (Part 3, Employment Practices Code) already sets outs out guidance over this issue. Employers that wish to monitor employee’s communications must be clear about the purpose of that monitoring, the actual benefits it will bring and use the least intrusive methods of monitoring. Employers should ensure that they have an IT policy that is clear on what constitutes acceptable use of the internet, that the employer may monitor communications, and set out clear standards of conduct and performance. This policy must be communicated to staff so they are aware that monitoring may take place.

Where an employer suspects an employee of misconduct involving electronic communications, it needs to substantiate its suspicion by carrying out an investigation and gathering evidence before confronting the employee as with other types of misconduct. This may include the reasonable and proportionate monitoring of internet usage in accordance with the relevant IT and/or the disciplinary procedure.

For advice on preparing an IT policy, revising a disciplinary policy or on how to deal with allegations of privacy breaches, please speak to a member of the Devonshires Employment Team.

 

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