Privacy in the workplace – what employers need to know

Work and how we work in general is changing. It is becoming more and more obvious that the thin line between personal life and work life is blurring. The ease of communication brought about by smart phones and the internet means that everyone is increasingly expected to be plugged in and available for work at any given moment. Employees are increasingly using personal devices and PCs for both work and personal purposes. For this reason monitoring employees at work increasingly shades into monitoring in a private context. To what extent then can employers monitor their employee’s office emails?

The recent decision of The Grand Chamber of the European Court of Human Rights in the case of “Barbulescu V Romania” demonstrates that employees are entitled to privacy at work even when using work related communication systems.

Facts of the Case:

Mr. Barbulescu was an engineer with a private company and his employment was terminated after his instant messages were reviewed by his employer.

Mr. Barbulescu was requested by his employer to set up a Yahoo messenger account to contact his employer’s clients and reply to their queries. Mr. Barbulescu’s employer established that he was using the service to exchange messages with his fiancée and brother. His employment was subsequently terminated on the grounds of a breach of the employer’s rules prohibiting the use of the employer’s resources for personal purposes.

Romanian courts ruled against Mr. Barbulescu. He took a case to the ECtHR arguing that the termination of his employment was based on a breach of his privacy rights under Article 8 of the European Convention of Human Rights. Article 8 enshrines the right to respect for private life and correspondence. In its judgment of 12 January 2016, the ECtHR held that the Romanian Courts had struck a fair balance between Mr. Barbulescu’s Article 8 rights and business interests of the employer. It was stated: “It was not unreasonable to seek to confirm that employees were completing professional tasks during work hours”.  This decision would have given employers wide ranging powers to monitor workplace communications.

The decision was appealed to the Grand Chamber of the ECtHR. The Grand Chamber overturned this decision holding that there had been a violation of Article 8 and that the employees’ communications in the workplace were covered by the concepts of “private life” and “correspondence”. The Grand Chamber Judgment is final.

Employers’ Duties Going Forward:

The Judgment helps to address some of the questions related to the scope of the right to privacy in the workplace.

It is advisable for employers to clearly communicate to employees what is the company’s internal policy on the usage of work computers and mobile phones for personal purposes.

The factors laid down by the Grand Chamber provide a useful guide for employers engaged in monitoring employee’s electronic communications. It is no longer sufficient for employers to have a general policy permitting monitoring – the policy will need to be much more detailed, outlining why, how and where employees may be monitored and explaining how any information gathered through monitoring may be used.

The policy should, at a minimum, inform employees:

  • Of the extent and nature of the employers monitoring or the possibility that the employer might have access to the actual content of messages;
  • Of the nature and purpose of any monitoring;
  • That any monitoring is necessary, proportionate and not excessive; and
  • That monitoring is carried out in the least intrusive manner possible (i.e. traffic data as opposed to content)

There is a useful Guidance Note for employers on monitoring of staff on the Data Protection Commissioners website.

For further information, please contact Sarah Coughlan.