Jeanne Kelly and Jennifer O'Neill of LK Shields Solicitors discuss the recent decision of the Grand Chamber of the European Court of Human Rights in the case of Bărbulescu v Romania regarding the right to privacy in the workplace.

The case concerned an employers' right to monitor the contents of their employees' private electronic communications and includes some important insights on privacy in the workplace.

Background

Mr Bărbulescu was employed by a private company as an engineer in charge of sales from August 2004 to August 2007.  He set up a Yahoo Messenger account on his work computer to respond to clients' enquiries, at his employer’s request and then used this work-related account to send private messages to his fiancée and brother, in breach of his employer’s policies.

On 13 July 2007, Mr Bărbulescu was confronted by his employer alleging that he had been sending private messages; Mr Bărbulescu denied this allegation. These messages were printed by his employer and used as evidence in the resulting disciplinary proceedings.  Mr Bărbulescu was subsequently dismissed for breaching his employer's internal policies which prohibited the use of company resources for personal purposes.

Mr Bărbulescu challenged his employer’s decision to dismiss him before the Romanian courts.  He argued that the decision to dismiss him was null and void on the basis that it breached his constitutional right to correspondence and also breached the Romanian Criminal Code.  Mr Bărbulescu was unsuccessful before the Romanian court, which held that his employer was entitled to establish usage rules prohibiting personal use of company equipment and Mr Bărbulescu had been informed of his employer's policy.

Mr. Bărbulescu appealed to the European Court of Human Rights (“ECHR”) which held in January 2016 that the monitoring of an employee’s email/internet usage was reasonable in the context of disciplinary proceedings and that “it was not unreasonable to seek to confirm that employees were completing professional tasks during work hours”.  The ECHR noted that his employer’s monitoring was both limited in scope and proportionate.

Having exhausted the avenues of redress in Romania, Mr Bărbulescu then requested that the decision of the ECHR be referred to the Grand Chamber.

Grand Chamber Decision

In an important departure from the previous decisions, on 5 September 2017 the Grand Chamber held that there had been a breach of Mr Bărbulescu’s rights to privacy and correspondence under Article 8 of the European Convention on Human Rights.

The Grand Chamber’s decision focused primarily on whether Mr Bărbulescu had been given sufficient prior notice of his employer's internal regulations on email/internet usage.  It was critical of the fact that the Romanian Courts had omitted to consider whether Mr Bărbulescu had been given advance notice of his employer’s monitoring measures.

In the Grand Chamber’s view, an employee must be warned of their employer's monitoring before such monitoring is initiated.  The Grand Chamber concluded that Mr Bărbulescu had not been informed in advance of the extent and nature of his employer's monitoring, or the possibility that the employer might have access to the actual contents of the Yahoo messages.

In its decision, the Grand Chamber was also critical of the fact that the Romanian Courts had not sufficiently examined whether the aim pursued by the employer could have been achieved by less intrusive methods than by accessing the contents of Mr Bărbulescu's communications.  In addition, the Grand Chamber noted that the Romanian Courts had failed to consider the seriousness of the consequences for Mr Bărbulescu resulting from the monitoring, namely disciplinary proceedings and dismissal.

Practical Implications for Employers

It is important to note that the Grand Chamber’s decision does not mean that employers can no longer monitor employee communications at work or dismiss employees for private use of company equipment.  However the decision serves as a reminder that when an employer takes measures to monitor employees’ communications, these measures must be accompanied by adequate and sufficient safeguards against abuse.  Employers need to carefully consider their phone, email and internet usage policies and be very clear with employees about what is and isn’t permissible.  Whilst employers’ strive to ensure proper usage of company equipment by their employees, and in this regard are permitted to impose restrictions on usage, the court has made it clear that an employer’s instructions cannot reduce private social life in the workplace to zero.  Employers should expect that their systems will be used for an element of personal communications.

Although not changing current best practice in Ireland in this regard, employers are reminded of the need to strike a fair balance between the interests at stake.  Monitoring should be carefully considered, approached with caution and conducted in the least intrusive manner in the circumstances.

When drafting email, internet and phone usage policies, employers’ should ensure that such policies are reasonable and proportionate, that prior notice of all monitoring practices is furnished, that the scope of such practices does not go beyond what is necessary for a legitimate purpose, that appropriate safeguards are put in place to preserve privacy in spite of monitoring and that employees know what specific disciplinary consequences may follow from a breach.  Crucially, policies should be clearly communicated to employees on induction and on a regular basis thereafter.

Please read the full decision of the Grand Chamber here:
https://hudoc.echr.coe.int/eng#{"itemid":["001-177082"]}

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Ciara O’Kennedy, Partner at LK Shields, will be presenting her session, ‘A Solicitor’s Guide to Bullying in the Workplace’ at this year’s Annual Review of Employment Law. Bullying, particularly cyberbullying, is a serious problem in many workplaces. Ciara will be highlighting key aspects in her comprehensive guide and discuss how participants might best deal with specific bullying issues or complaints.

View the full programme, speaker line-up and dates/venues here:

Thursday 2nd November 2017 - Red Cow Moran Hotel, Dublin

Wednesday 15th November 2017 - Crowne Plaza Hotel, Northwood, Dublin

Thursday 30th November 2017 - Talbot Hotel, Stillorgan, Dublin