A company that spied on an employee’s Yahoo Messenger account broke European human rights law guaranteeing privacy, judges ruled today in a landmark decision that will influence how employers monitor their staff’s use of electronic communication at work.
Judges sitting in the Grand Chamber of the European Court of Human Rights, the highest court of appeal, agreed by 11 votes to six.
The judgement will be closely scrutinised across Europe, where instant messaging services such as G-Chat, Facebook Messenger and WhatsApp are increasing popular in offices.
As the ease of modern communications blurs boundaries between work and free time, the way in which people balance work- life commitments is becoming more problematic for both employers and staff.
Bogdan Bărbulescu, a Romanian engineer at a sales company, was sacked after using his work Yahoo Messenger account for conversations with his fiancée and brother.
The salesman argued that the firm had infringed his rights by spying on his messages after the company informed him that his use of the account had been monitored and that he had been found to have used it to exchange private messages with his brother and fiancee.
Bărbulescu, who had been warned not to use the account for private matters, denied the claim but was presented with transcripts of his personal communications.
He then took his employer to court in Romania, who found against him. He appealed the decision to the ECHR’s grand chamber in 2008.
Both the French government and the European Trade Union Convention made representations to the court before the judgement in a sign of the implications the final decision will have on privacy and employment law.
The Strasbourg-based ECHR cannot establish new laws, but its decision could form a significant legal precedent about how far monitoring is permissible and its decisions will still carry weight in Britain after Brexit.
In July, regulators warned company bosses not to snoop on their workers’ Facebook and Twitter accounts.
Employees and applicants should also not be forced into accepting friend requests from their bosses or handing over their passwords.
James Froud, Partner in Bird & Bird’s Employment Group says:
“Today’s judgment doesn’t mean employers cannot monitor their employees’ use of the internet, or that employees can no longer be dismissed for personal use of the internet at work, but in future, employers must take certain steps when assessing whether a measure to monitor is proportionate to the aim pursued, and whether the employee is protected against arbitrariness.
They should, for example, notify the employee that they may be monitored, provide legitimate reasons for doing so, and provide them with enough notice and safeguards if the monitoring is to be intrusive.
It will be interesting to see whether this decision opens the floodgates to similar claims in the UK and what view judges take in each case in the light of it. UK courts have for some time had to grapple with the conflict between the right to privacy and employers upholding internal discipline. However, to date, they have shown little sympathy to employees, recognising that it is very much a qualified right which can be superseded where protecting an individual’s privacy may infringe the rights of others. In truth, these cases will always turn on the specific facts and therefore the decision is unlikely to result in a fundamental change in legal position – but we may see a shift in emphasis, with courts requiring employers to clearly demonstrate the steps they have taken to address the issue of privacy in workplace, both in terms of granting employees ‘space’ to have a private life whilst clearly delineating the boundaries”.