To snoop or not to snoop?

05 Feb

There appears to have been much fluttering of feathers since the European Court of Human Rights (ECHR) ruled that an employer was not at fault for monitoring an employee’s messenger account and dismissing them after discovering personal messages had also been sent, despite it being for professional use only.

The employment law decisions ruled by the ECHR have implications for HR policy for all European Union member states.

Case facts - Barbalescu v Romania

Mr Barbalescu (Mr B) was asked by his employer to set up a Yahoo Messenger account for the purpose of responding to clients’ enquiries. The employer gave notice to its employees that internet use would be monitored. After a week’s monitoring, his employer identified that Mr B had been using the internet for personal purposes, contrary to the company’s rules which prevented personal internet use. 

Mr B initially denied any personal use, but the employer’s findings were backed up by a transcript of his communications. Mr B sought to argue that his employer had violated the Criminal Code and the Romanian Constitution by violating his correspondence and brought a claim in the Bucharest County Court. The court dismissed his claim, finding that the employer had complied with the relevant disciplinary proceedings and that Mr B had been informed about the employer’s rules on personal internet use. 

The court said that as Mr B had denied using the internet for personal use, the employer had no option but to check the content of his Yahoo communications, and that monitoring employees’ use of company computers was within the broad scope of the employer’s right to check the manner in which professional tasks were being completed.

After a series of appeals, the ECHR had to decide whether a fair balance had been struck between Mr B’s right to respect for his private life and correspondence, and his employer’s interests. It found that there had and Mr B lost the case.

They relied on various findings:

* Mr B had been able to raise his arguments before the domestic courts and they had found that the employer had acted within its disciplinary powers;

* The domestic courts had also found that Mr B had used the company’s computer for personal use during working hours, and that there had therefore been a disciplinary breach of the employer’s rules;

* The employer had only accessed Mr B’s account on the basis that the information in question was assumed to relate to Mr B’s professional activities; it had not accessed any other documents or data on Mr B’s computer and its monitoring was  therefore limited in scope and proportionate;

* It was not unreasonable for an employer to want to verify that employees are completing their professional tasks during working hours; and

* Mr B had failed to convincingly explain why he had used the Yahoo account for personal purposes

On the face of it, this case appears to afford employers some confidence in the ability to monitor employee emails and internet use. However, significant caution should be exercised. Ensure that data and monitoring policies are tight and that any processing of personal data for the purposes of the employment relationship, including staff management and discipline, are underpinned well drafted employment contracts and by well laid out polices that are in line with data protection laws and principles. 

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