Pavol Rak - Managing Partner
Employees must frequently communicate with remote colleagues or clients via email, SMS and instant messaging service. This is particularly true when the employee is directly responsible for making sales on behalf of the company, and must be in near constant contact with customers. It is, of course, an employer’s right to verify that employees are conforming to work rules and are completing work timely and properly. This right of verification can be limited significantly, however, in circumstances where it would require an unreasonable violation of an employee’s privacy. How and where boundaries are being placed between acceptable execution of an employer’s prerogative and excessive invasion of an employee’s privacy has bedeviled courts and lawmakers at the national and EU levels. Privacy has long been one of the most important rights here in Europe, and it has been extended, perhaps excessively, even to apply to employee communications made during working hours and via company equipment. Happily for employers, the European Court of Human Rights (ECHR) has recently waded into the issue and seems to have afforded more leeway in monitoring an employee’s use of technology. In January, the ECHR issued a decision in the case of BĂRBULESCU v. ROMANIA (Application no. 61496/08), which held that an employer may monitor an employee’s personal instant messages, and may fire that employee upon discovering a misuse of company equipment.
Background
In Barbulescu, the Applicant, a Romanian national, was employed as a Salesperson for a Romanian company between 2004 and 2007. The employment was pursuant to an Employment contract which contained the following provision concerning the use of company technology:
“It is strictly forbidden to disturb order and discipline within the company’s premises and especially ... to use computers, photocopiers, telephones, telex and fax machines for personal purposes.”
To better fulfill his job responsibilities, the Applicant’s employer required him to create a Yahoo Instant Message account, which was to be exclusively used for communication with the employer’s clients (and was subject to the above restriction).
Approximately 3 years after the Applicant began working with his employer, he was provided with - and signed- a memorandum reminding him of his employer’s policy concerning the use of company technology [1]. Shortly thereafter, one of the Applicant’s co-workers was fired for violating this provision.
However and perhaps a tad surprisingly, these warnings apparently proved to be insufficient for the Applicant. In July 2007, the Applicant was informed that his Yahoo account had been reviewed, and that his employer had discovered that it was being used for personal communication in violation of the Applicant’s employment contract. The Applicant denied misusing the account.
As a result of the Applicant’s denial, his employer then produced 45 pages of transcripts taken directly from the Yahoo Chat account the Applicant created at his employer’s request. The company also printed and produced several chat messages the Applicant sent via his private Yahoo account, which the Applicant accessed via a work computer. The transcript included messages between the Applicant and his Fiancée, and his brother. The court notes that the communication related to both health and sexual matters.
When confronted with this evidence, the Applicant informed his employer that the transcripts were obtained in violation of Romanian criminal law, and constituted a violation of the Applicant’s privacy under Article 8 of the European Convention. Notwithstanding these complaints, the Applicant was terminated.
For these reasons, and because the employer failed to show any actual harm caused by the Applicant’s actions, the Applicant sued to have his termination declared invalid. At the district court, the transcripts of the Applicant’s chats were admitted as evidence against him. After having his attempts rejected at all levels within the Romanian court system, he sought relief from the ECHR.
The Decision
The ECHR concluded, over objections from the Romanian government, that an analysis of the facts in relation to Article 8 of the European Convention was appropriate, specifically what affirmative obligation Romania had in safeguarding the Applicant’s privacy, and to what extent the Applicant had a reasonable expectation of privacy in his personal communications.
The court found that the employer had a legitimate reason for checking the Applicant’s communication- namely that the employer believed them to be exclusively business related [2], the monitoring was the only method by which the employer could review the Applicant’s compliance with internal rules, and the monitoring was done for a reasonably finite period of time. Additionally, the court held that no showing of damage is required in such a case [3]. Finally, the court determined that the introduction of the transcript as evidence at the district court was an appropriate step for demonstrating that the Applicant had misused company equipment. As a result, the court concluded that no Article 8 violation occurred, and that the Applicant’s termination was in conformity with law.
What This Means for Employers
The ECHR has long recognized a strong right of privacy, one which has been found to apply to employees and their personal communication made during the working day and by way of an employer’s equipment [4]. The Barbulescu decision provides for limitations of that right. Employers wishing to increase monitoring of employees have been handed a rough outline as to what conditions must be satisfied to increase surveillance; Employees must be given notice of the possible monitoring and the monitoring must be reasonable in duration and scope. Further, the employer must reasonably believe that the communications accessed relate to work and the employer’s business [5], and that the monitoring is the only means by which the employer can determine whether employees are following internal rules and completing work correctly. Additionally, it now appears permissible that private employee communication obtained during such an observation period might be used as evidence at a trial on the issue of wrongful termination, especially to counter an employee’s denial of misuse [6].
Employers wishing to take such steps must exercise extreme caution, however. Even when allowed to some extent by law, as is the case under § 20 of the Labour Code here in Slovakia, courts will likely continue to strongly scrutinize not only the methods used by employers, but also their underlying motives. The Barbulescu decision cannot be seen as a carte blanche invitation to monitor everything an employee says or does during working time, even if such a provision is included in employment contracts, internal rules of conduct, is provided to employees in a notice requiring a signature acknowledging receipt, or is posted prominently in communal space at the workplace. Rather, it should be taken as a small step towards recognizing that employers have rights as well, and that sometimes, to maintain healthy working environments, employee privacy rights must yield.
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[1] The ECHR notes that the employer failed to provide a copy signed by the Applicant and the Applicant had submitted only an unsigned version.
[2] The court at various times makes reference to the Applicant’s denial of misusing the Yahoo account as justification for the employer’s actions in viewing and printing the Applicant’s chats. This also was the holding of the Romanian district court, (“However, since the [applicant] claimed during the disciplinary proceedings that he had not used Yahoo Messenger for personal purposes but rather for advising clients on the products offered by his employer, the court finds that checking the content of the [applicant]’s communications was the only method for the employer to verify the [applicant]’s line of defence.”). As the employer had monitored the Applicant’s communication prior to affording him with an opportunity to deny the misuse, it is unclear how the denial justified the initial monitoring.
[3] Leading to the conclusion that mere engagement in non-work matters over company equipment might give rise to grounds for termination.
[4] See, among others, Copland v. the United Kingdom (no. 62617/00, ECHR 2007‑I)
[5] The court glosses over how this would apply to the Applicant’s personal chat account. It does note that when considering emails, which have subject lines, it might be possible to determine which messages are private by only scanning the subject.
[6] Under this decision, it may actually be possible to do without an employee denial.
Author: JUDr. Pavol Rak, Managing Partner at Noerr
