The right to privacy in the workplace is something that, up until now, could have been viewed as something of a grey area. How is privacy in the workplace defined? Where and when is it applicable? What are the limits of this privacy? Indeed, what constitutes the workplace?

A September 2017 judgment by the European Court of Human Rights, in which it overturned its lower court, is crucial to the understanding of European law with regard to employee rights to privacy in the workplace.

Violation of internal regulations

The case concerned an engineer, Mr Barbulescu, who was dismissed by his employer after using the company’s instant messenger system for personal purposes, after he was asked to set up the account for work purposes. The company stated that this was a violation of their internal regulations.

Mr Barbulescu failed to overturn the employer’s decision in the domestic courts of Romania, and the Chamber of the ECHR in January 2016 upheld the court’s ruling, stating that the domestic courts had maintained an appropriate balance between the privacy rights afforded under Article 8 of the European Convention on Human Rights and the employer’s interests.

Decision overturned

However, this decision was overturned by the Grand Chamber of the ECHR in September 2017, with serious implications for privacy in the workplace.

The court ruled that the lower court had failed to take account of a number of key considerations, such as the notice period of the monitoring activity; the breadth and depth of the monitoring; the reasons for the monitoring; whether less intrusive methods could have been used; the consequences and impact of that monitoring; and adequate safeguards afforded to the employee as a result of the monitoring.

What does this mean in practice? Essentially, employers need to re-examine their policies on employee privacy in the workplace.

The policy must explain:

  • the scope and type of monitoring employed;
  • the reasons such monitoring is deemed necessary; and
  • the possible consequences of using the results of the monitoring e.g. could data be used during a procedure that could result in the termination of a contract?

This is not a binding decision, however it could well guide similar cases in future. It is beholden on companies to ensure their policies are up to date and reflective of current European law.

Contact us if you’d like to chat to us about your employment law requirements. We’d be happy to help.

01 November 2017

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