The European Court of Human Rights and privacy at work

Employers in Ireland and other European countries should take note of a recent ruling of the European Court of Human Rights in relation to the monitoring their employees' use of social media and the internet whilst at work.

In the case of Barbulescu v Romania an employee used a Yahoo Messenger account for personal use. The account had been set up at the employer's request solely for work use. The employer had made it clear to the employee that there was an absolute ban on personal use. The Romanian Court found that the dismissal of the employee was fair as it was for breach of workplace rules. It held that the employer was entitled to investigate whether its rules had been broken and to submit evidence of that breach to the court, which in this case was a transcript of the personal messages sent by the employee.

It should be noted that the employee had denied the personal use, thus causing the employer to carry out further investigations, namely obtaining copies of the personal messages.

The ban in this instance was absolute. What would the decision be if some personal use had been allowed?

Also, in the case of Yahoo Messenger there was no facility to tag the messages as personal. There would have been no need to open the messages if they were tagged personal as the use of personal in the subject line would have proven the breach. Although what would happen in a case where the message was tagged personal by mistake and the content was actually work related?

It was significant that the employer in this case had made the workplace policy widely known.

It is important to note that this was a ruling of the ECHR, not a European Law Court. The ECHR deals with human rights issues and cannot apply to individuals. It can however direct that the state ensures that human rights are protected.

The position in Irish law is that an employee has rights under Data Protection legislation.

For more on Data protection see  . 

Employers should familiarise themselves with this legislation before considering monitoring employee comminications. Consider the reason for the monitoring. Is it justified? How extensive must it be? What use should you make of the information? It should only be disclosed to as few parties as are necessary.

Can the employee claim that there is a reasonable expectation of privacy and that the employer was not justified in breaching their privacy? This is a question every employer should ask, before taking any action in relation to monitoring personal communication of employees at work.

A reasonable expectation of privacy can arise, for example, where an employer has expressly allowed an employee to use a phone or computer for private purposes or has tolerated its use.

It is important to have a workplace policy and communicate it clearly.

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 Image courtesy Regan Walsh