Privacy in the Workplace – the Bărbulescu decision

15 January 2016

By Paul Scholey, Head of Employment Rights Team, Morrish Solicitors

In Bărbulescu v Romania, the European Court of Human Rights has rejected an employee’s claim that his firm infringed his right to privacy (under Article 8 of the European Convention on Human Rights) by intercepting Instant Messages sent on a work computer.

Reported as another sort of “snooper’s charter” the outcome of the case is not altogether surprising, certainly from the perspective of the English legal system’s approach to these things.

The employers in question had a clear policy prohibiting private use of messaging at work; the employee admitted breaching the policy; the employer (significantly, perhaps) accessed the private messages not for their content per se, but for the purpose of proving that said content was not work-related.

The English courts have by and large given short shrift to arguments raised by employees under Article 8 (and under Article 10, dealing with Freedom of Expression, too).

In Williams v Leeds Utd Williams failed in a claim to recover a six-figure sum representing notice pay after he was dismissed when the Club used forensic computer investigators to “dig the dirt” in the hope of cutting the notice period short. When the hoped-for skeleton materialised in the closet of the inbox – in the form of a pornographic email sent five years previously, the Club argued successfully that it was entitled to rely on that email as the basis for summary dismissal. If you are emailing, IM-ing, posting to your Facebook wall or commenting on You Tube, you do so at your own risk if you’re on your employer’s clock.

And sometimes even if you’re not: a charity worker providing services to inmates at a prison found himself dismissed despite having sent the offending email from his personal PC at home to the personal PC of a colleague in the prison service (also at home). The result: the employers were entitled to dismiss. Rights to privacy did not trump the employer’s right to protect its good reputation.

It’s interesting, then, that the Institute of Directors should have responded to the Bărbulescu decision with encouragement to employers to exercise care when accessing private communications. See this article.

Whatever the legal position, I think IoD’s advice represents good industrial relations practice – you don’t routinely monitor what your employees say over the coffee machine and on their breaks; instant messaging might be the new “staff room chat” and employees’ privacy should be respected.

It is perhaps the ease with which employers can now monitor communications that has led to more frequent examples of cases in the Courts and Tribunals.

Coffee machine banter was ephemeral – the employer couldn’t know about it short of bugging the machine or eavesdropping through a flimsy wall.

But now comments on IM or via email or on Social Media sites like Facebook can be permanent. They might be copied & pasted, posted elsewhere or transmitted onwards. Even a “deleted” item might be recoverable with the right tech (as Mr Williams discovered to his cost).

Vitally, an employer should communicate its information-sharing and Social Media policies to employees. If emails are likely to be read, employees should be told that’s the case (before they read them, not after the fact).

Employers should think about whether they will allow private messaging or other use of Social Media. If they permit a reasonable number of personal telephone calls, is there by analogy a rationale for permitting a sensible amount of time spent on IMs or similar? If usage is going to be monitored, employees should, again, be told that up front.

In the end if an employee spends too much time on Facebook, they are just as liable to be disciplined as if they spend too long on the phone (or have too much time off). The new media pose some different questions, but a lot of the answers are the same – communicate policies properly, make allowances for the fact that home life inevitably creeps into the workplace from time to time, and take a reasonable and proportionate view about employees looking to do personal things on the firm’s time.

Not only will employees feel valued and respected, but from the employer’s perspective it’s good business sense too, as we see employees putting more and more stock in work-life balance issues when looking for new roles.