Is it safe for employers to monitor employees’ internet activity?

2017-09-22 Jennifer Renney-Butland posted:

Businesses are advised to take note of the recent decision of the most senior court – the Grand Chamber of the European Court of Human Rights (ECHR), which has overturned the ECHR decision in the case of Barbulescu v Romania by declaring that an employer's monitoring of an employee's communications at work was an infringement of his right to respect for private and family life.

Despite the fact that the employer’s staff handbook prohibited the use of the company's IT equipment for private communications, and also that the employee Mr Barbulescu was aware that other members of staff had been dismissed for breaching this policy, Mr Barbulescu exchanged messages on Yahoo Messenger with family members containing personal information about his health and also, rather bizarrely, his sex life. When his employer discovered this whilst monitoring internet use, Mr Barbalescu was dismissed.

Mr Barbalescu issued claims for breach of privacy laws and Article 8, which were originally rejected by the employment tribunal and the ECHR, but on further appeal to the Grand Chamber of the ECHR, this decision was recently overruled. The reasoning for this was that, although Mr Barbulescu was aware that there were restrictions on the personal use of IT equipment in the workplace, he had not been informed of the nature and extent of the monitoring by the employer, nor that the employer would have access to the content of his communications.

The Court stated that a balance needs to be struck between an employee’s right to privacy, and the employer’s right to monitor workplace activity, and that employees must be notified by the employer of the following:

  • That the employer will be monitoring communications;
  • The extent of the monitoring and the degree of intrusion – and here a distinction was drawn between monitoring the flow of communications and their content;
  • Legitimate reasons must be provided for the justification of (1) monitoring communications and (2) their actual content, and that (2) will be more difficult to justify; and
  • Employers must notify staff of how the evidence collated by the monitoring will be used and any possible consequences for the employee, eg dismissa

In the UK the monitoring of employees is governed by the Data Protection Act 1998 (the DPA), which places strict limitations on the powers of employers to monitor employees' private communications at work. Breaches of the DPA can give rise to expensive fines as well as employment tribunal claims and employers must take care. These risks can however be minimised by ensuring that companies have:

  • A clear IT policy;
  • An up-to-date Data Protection policy; and
  • That staff are made aware of the policies.

We are specialist employment lawyers who act for a large number of local businesses and private individuals. If you need assistance with policies or disciplinary matters, feel free to contact us for further information at 01225 632240 or email info@renneyandco.com with any questions.

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