Monitoring employees’ communications: the final word

September 6th, 2017

In January 2016, Panopticon brought you a post entitled “Employer was entitled to access employee’s private Yahoo! messages (and to sack him)”. It concerned an eye-catching judgment of the Fourth Section of the European Court of Human Rights in the case of Barbulescu v Romania (application 61496/08).

In a nutshell: the applicant had used his employer’s Yahoo! messenger service (intended for work use) for personal communications, including with his fiancé and brother. His employer monitored those communications and sacked him for misuse of its messenger service. Did that monitoring of his private communications breach his privacy rights under Article 8 ECHR? No, said the Romanian courts, and Strasbourg’s Fourth Chamber said likewise (a victory for common sense, said many employers!). But on a further appeal to the Grand Chamber of the ECHR, that assessment has been reversed: the last word is that Article 8 was indeed breached here (what now, ask many employers?).

To bottom out that question of where this leaves the question of employers monitoring employee communications, we need to be clear on what the appeal was – and was not – about. The Grand Chamber was not directly concerned with the lawfulness of the employer’s actions. After all, the employer was not a public authority bound by Article 8 ECHR. Rather, the Grand Chamber was concerned with whether the Romanian courts had done their job properly. Courts are public authorities, and in resolving such workplace disputes, they must give proper effect to the ECHR. That is part and parcel of the positive obligation on member states to safeguard Article 8 rights in the employment context (see paras 108-112 of the Grand Chamber’s judgment).

The immediate question was therefore not whether the employer’s monitoring fell short of Article 8 standards, but whether the domestic courts’ analysis did so. This is illustrated by the fact that, while the applicant received a costs award, his claim for damages was dismissed: he sought compensation for his dismissal, but the Grand Chamber discerned no causal link between the Article 8 contravention and his loss of wages (para 145).

Unlike the Fourth Section of the ECtHR, the Grand Chamber found that there had indeed been a judicial failure to apply Article 8 properly in this case. I emphasise this point because this week’s Barbulescu judgment should not be read as a ban on employer monitoring employees’ communications in the work place. The judgment is about how to think Article 8 through rigorously. If workplace monitoring passes a sufficiently rigorous Article 8 analysis, then it can in principle be lawful.

What does that rigorous analysis involve? The Grand Chamber spells this out at para 121 of its judgment, where it lists the questions that must be asked when assessing the lawfulness of workplace monitoring of communications. It then explains at paras 133-138 how the Romanian courts failed to grapple properly with those key questions.

Along the way, the Grand Chamber gives us a neat summary of the factors that seemed to weigh against the employee here (see para 130). He knew that company policy prohibited the use of the workplace messenger service for private communications. He knew that others had been dismissed for contravening that policy. He signed documents demonstrating that he had been made aware of these matters. When he was summoned to a disciplinary meeting about his use of the messenger service, he maintained for 50 minutes that it had been purely work-related, only capitulating (and crying foul) when presented with a 45-page transcript of the content of the relevant messages, which were plainly not work-related.

But there’s the rub: the first flaw here was that, while he had been told not to use the messenger service in this way, he had not been given advance notice of the nature and extent of potential monitoring, and in particular of the fact that the content of his communications could be monitored (para 133).

The other key factors with which the Romanian courts had failed to grapple were (paras 121 and then 134-138): the extent of the privacy intrusion; the justification for this kind of monitoring; the possibility of the employer achieving its legitimate underlying objective through less privacy-intrusive means; the severity of the consequences for the employee (here, dismissal) and the fact that the content of his messages were monitored before he was summoned to his disciplinary meeting.

In summary, the Grand Chamber has set out a detailed multi-factoral test for determining whether workplace communications monitoring is lawful under Article 8 ECHR. This makes the final word in Barbulescu an important landmark in this area of law. It bears repeating, however, that Barbulescu is about rigorous standards for employee monitoring; there is no outright ban on such monitoring.

Robin Hopkins @hopkinsrobin

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