19th January 2016

To spy or not to spy

Employers and employees are often unsure about the extent to which an employee’s internet usage can be monitored.

The European Court of Human Rights (“ECHR”) has recently considered this point in the case of Barbulescu –v- Romania. The Claimant had created a Yahoo Messenger account, at his employer’s request, for the purpose of responding to clients’ enquiries. In July 2007, the employer informed him that his Yahoo Messenger communications had been monitored over preceding weeks and it had been revealed that he had used the internet for personal purposes, contrary to internal regulations. The Claimant denied this but was provided with evidence to the contrary, which included copies of exchanges with his fiancée and his brother on personal matters. The Claimant’s employment was duly terminated.

The Claimant took his case all the way to the ECHR, who held that the monitoring of employees’ personal communications at work does not necessarily breach Article 8, provided the monitoring is reasonable and proportionate.

In this case, the ECHR noted that the employer had accessed the Claimant’s Yahoo Messenger account in the belief that it contained professional messages and therefore the access had been legitimate. It also attached importance to the fact that the decision by the Romanian Courts did not reveal the actual content of the personal messages, but simply relied on the fact that they were personal messages. The ECHR recognised that employers have to be able to verify that their employees are completing professional tasks during working hours.

Comment

Monitoring employees’ email and internet usage is likely to remain a prickly subject and each case will turn on its own facts. However, employers can strengthen their position by ensuring that they have a clear policy in place detailing what is expected of their employees in relation to their internet usage and how and when this will be monitored. Employers should ensure they can evidence this has been distributed to all employees.

If you would like to discuss this case further or require advice upon the recommended content for a robust internet policy, please contact us.