Employers need to take care over EU judgment on email monitoring

A recent ruling from the European Court of Human Rights (ECHR) has opened the way for UK employers to monitor employees’ work emails and electronic communications in order to ensure they are complying with their duties, in a decision which has raised concerns over how to manage data privacy in the workplace

The case concerned Romanian Bogdan Bărbulescu, who mounted a legal challenge to his employer’s decision to sack him once the company found he was exchanging messages with his friends during working hours.

Bărbulescu was employed by a private company as an engineer in charge of sales. At his employers’ request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. On 13 July 2007 Bărbulescu was informed by his employer that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed he had used the internet for personal purposes.

Bărbulescu replied in writing that he had only used the service for professional purposes. He was presented with a transcript of his communication including transcripts of messages he had exchanged with his brother and his fiancée relating to personal matters such as his health and sex life.

On 1 August 2007 the employer terminated Bărbulescu’s employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.

Bărbulescu’s legal challenge claimed that e-mails were protected by Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention and that the original court had not allowed him to call witnesses to prove that his employer had not suffered as a result of his actions.

In its judgement, the ECHR said it was not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours and noted that the employer had accessed Bărbulescu’s account in the belief that it contained client-related communications.

Secondly, Bărbulescu had been able to raise his arguments related to the alleged breach of his private life and correspondence before the domestic courts and there was no mention in the ensuing decisions of the actual content of the communications.

Notably, the domestic courts had used the transcript of his communications only to the extent that it proved that he had used the company’s computer for his own private purposes during working hours and the identity of the people with whom he had communicated was not revealed.

The Court therefore concluded that the domestic courts had struck a fair balance between Bărbulescu’s right to respect for his private life and correspondence under Article 8 and the interests of his employer.

Stewart Room, head of data protection and privacy at PwC and PwC Legal, said the case confirmed the long established principle that in certain circumstances employers may monitor their employees' activities in the workplace for the purpose of establishing whether they are fulfilling their duties without breaching the right to privacy in the workplace that all employees enjoy.

However, Room cautioned that businesses should recognise that the judgment does not provide them with a carte blanche right to undertake workplace monitoring.

‘The decision of the Court was not a unanimous decision (one of the judges delivered a dissenting opinion), it was based on a unique set of facts and it does not bind national courts or national privacy regulators.

‘What is indisputable is that the right to monitor employees must be carefully balanced against the right to privacy, which in practical terms means the performance of appropriate risk assessments before monitoring schemes are commenced, focusing particularly on whether the purpose for the monitoring is legitimate,’ Room said.

Employers must also give adequate notice to their employees that monitoring will take place and what it will entail.  The monitoring activities must be limited to those that are strictly necessary to deliver on the purpose.  The overall schemes for monitoring should be kept under regular review.

Room said: ‘Business leaders are strongly encouraged to consider the detail of their national laws and the detail of their own monitoring needs before they react to the news that is being generated about this judgment.’

The ECHR judgment is here

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Pat Sweet |Reporter, Accountancy Daily [2010-2021]

Pat Sweet was the former online reporter at Accountancy Daily and contributor to the monthly Accountancy magazine, pub...

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