Important Decision of the European Courts Concerning Privacy in the Workplace

By Harry Wall
6th August, 2017

Background
The Grand Chamber of the European Court of Human Rights (the “ECtHR”) has reversed one of its own decisions in an important case concerning privacy rights in the workplace.

In Barbulescu v Romania[1] a Romanian national was dismissed by his employer after monitoring of his electronic communications showed that he had been using company internet systems for personal purposes. After unsuccessfully bringing proceedings before the national courts in Romania, Barbulescu brought a case to the ECtHR arguing in accordance with Article 8 of the European Convention of Human Rights[2] (the “Convention”) that his employer’s decision to dismiss him after monitoring his electronic communications and assessing their content was a breach of his privacy.

Last January the ECtHR had initially ruled that there had been no violation of Article 8 of the Convention, stating that the Romanian courts had struck a fair balance between Barbulescu’s right to respect for his private life and correspondence and the interests of his employer, and that the monitoring of his communications had been reasonable in the context of disciplinary proceedings. The Grand Chamber has now reversed that ruling, stating that the national authorities had not in fact adequately protected Barbulescu’s right to respect for his private life and correspondence in accordance with Article 8. Decisions of a chamber of the ECtHR can be referred by either party for reconsideration by the Grand Chamber of the ECtHR. The judgments of the Grand Chamber are final.

Key Takeaways for Employers
There was some discussion around whether the original decision of the ECtHR effectively gave employers carte blanche with regard to monitoring emails and other electronic communications in the workplace. The ruling was not in reality open to such broad interpretation, and allowed for monitoring only where certain requirements had been satisfied. The Grand Chamber decision has further clarified the checks and balances that employers must be cognisant of when considering disciplinary sanctions based on monitoring of electronic communications

The ECtHR does acknowledge that employers have a legitimate interest in ensuring the smooth running of a business, and that this can be achieved by checking that its employees are performing their professional duties adequately and with the necessary diligence. However, this reversal of its earlier decision makes it clear that at a minimum employers are expected to take certain considerations into account when contemplating engaging in monitoring the flow or content of electronic communications, in particular the following:

• Prior Notification: Employees should be notified in advance of the possibility that the employer might take measures to monitor correspondence and other communications. Such advance notification should normally be clear about the nature of the monitoring to be undertaken.
  
  Barbulescu was aware of his employer’s policy prohibiting personal use of company resources and had signed a copy of the policy. He was also aware of a notice circulated by his employer notifying staff reiterating the prohibition and setting out that an employee had been dismissed for breaching this rule. Barbulescu also signed a copy of this notice. The Court however deemed it relevant however that he did not appear to have been informed in advance of the nature or extent of his employer’s monitoring activities, or that his employer would have access to the actual content of his messages.
  
  In order to qualify as prior notice, a warning from an employer must be given before the monitoring activities are initiated, especially where such activities entail accessing the content of employees’ communications
  
• Degree of Intrusion: Consideration must be given to the scope of the monitoring and the degree of intrusion in relation to employees’ privacy. Barbulescu’s employer recorded all of his (and his colleagues) communications in real time, accessed them and printed out their contents. A distinction should also be made between monitoring the flow of communications, and monitoring of content of communications
  
• Legitimate Reasons: Equally an assessment must be made of whether there are legitimate reasons to justify monitoring the communications and accessing their content. As monitoring of content is more intrusive, it will require a greater degree of justification.
  
  The monitoring carried out in Barbulescu’s case was very extensive. The employer had cited as justification the need to avoid the company’s IT systems being damaged, the potential of liability for any illegal activities carried out by employees online and the potential disclosure of trade secrets as reasons for the level of monitoring in place. There was no suggestion however that Barbulescu’s communications with his brother and fiancée had actually exposed the company to any of those risks.
  
• Less Intrusive Methods: It will be necessary to examine whether it would be possible for an employer to achieve their aims by establishing a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications.
  
• Seriousness of Consequences: Consideration must be given to the potential implications for employees of having their communications monitored. The Romanian courts had not taken into account the seriousness of the consequences for Barbulescu of the disciplinary proceedings instigated on foot of the monitoring of his communications and which had culminated in him receiving the most severe disciplinary sanction available, namely dismissal from his employment.
  
• Data Protection Principles: The ECtHR confirmed the importance of conforming to Data protection principles when seeking to implement monitoring of communications in the workplace, principles including necessity, transparency, purpose specification, legitimacy, proportionality and security. For further information in relation to the application of these principles, our previous insight on monitoring workplace communications is available here.
  
• Procedural Fairness: Aside from the issues of monitoring, it must be ensured that the employee is afforded fair procedures in any disciplinary process instigated on foot of any monitoring undertaken.