Monitoring employee communications at work
Tuesday 12th September 2017
In 2016 the ECHR decided in Burbulescu v Romania that Mr Burbulescu’s right to a private life under Article 8 of the European Convention of Human Rights had not been breached when his employer monitored his personal use of its Yahoo! Messenger account. The Grand Chamber of the ECHR has now reversed this decision.
Mr Burbulescu was dismissed by his employer for using its workplace messaging system for personal communications. Company policy prohibited this, which Mr Burbulescu knew. However, The Grand Chamber was not determining whether the employer’s actions in dismissing Mr Burbulescu had been lawful, but ensuring that the Romanian Courts had given proper effect to Article 8. In this case, they had not done so. Mr Burbulescu had not received advance notice of the nature and extent of the monitoring, nor was he aware that his employer could access the content of the messages without his knowledge. In addition, the Romanian courts had not determined the employer’s reasons for the monitoring, whether they were legitimate or considered whether less intrusive options were available.
The Grand Chamber’s decision is not a ban on monitoring employee communications, nor does it create an absolute right to privacy. However, it does mean that an employer cannot negate an employee’s privacy rights at work and a balanced assessment must be undertaken. The Grand Chamber went on to set out various factors to be considered when determining whether monitoring is lawful for Article 8 purposes.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.