On the 5th of September 2017 the Grand Chamber made an important judgement in a case concerning the monitoring of an employee’s electronic communication by a private employer. This case involved the dismissal of Mr. Barbulescu from his job due to the uncovering of his use of a work email for personal correspondence.
Cases concerning email privacy in the workplace continue to become a contested issue, where in the past Courts have tended to side with the employers. However the judgement in this case favoured Barbulescu ruling that the company’s actions were in direct violation of his Article 8 rights, as per the European Convention on Human Rights (the right to privacy).
In essence, moving forward this judgement does not mean that employers cannot monitor employees’ communications or that employees cannot be dismissed for using internet at work for personal reasons. Rather this judgment lays out certain criteria that should be followed to ensure that when monitoring employees’ communications there is no violation of their Article 8 rights. The criteria to be followed as laid out in the judgement are as follows;
• The employee should be notified of the possibility that the employer might monitor any communications. This notification must be given in advance of the monitoring and clearly indicate the nature of the monitoring;
• The extent of the monitoring on behalf of employer is an important factor in deciding whether a violation has occurred. Factors to be assessed are whether all communications were monitored, the monitoring of actual content and the extent to which this occurred and the number of people who had access to results of the monitoring;
• A legitimate reason must be provided to justify monitoring communications and assessing their actual content, more justification is required in regards to assessing actual content;
• Assessment will occur into whether the employer could have achieved their aim without directly accessing the full contents of the employees’ communications;
• The consequences of the monitoring for the concerned employee and how the employer used the results, particularly were they used to achieve the declared aim;
• Whether the employee has been provided with adequate safeguards, especially where monitoring operations were of an intrusive measure. These safeguards should be in place to ensure employer cannot access the actual content of the communications, unless employee has been notified in advance of that eventuality.
These guidelines should be followed to ensure that employers do not violate the Article 8 rights of employees when monitoring any form of communications.