Green light for "Big Brother lurking"? Investigations at work

Joanna Smart provides a reminder of the rules around investigating personal online activity at work.

28/01/2016

The press has recently reported widely – and, in some cases, misleadingly - on the European Court of Human Rights' ruling on an employee's personal use of an 'instant messenger' service at work. Joanna Smart puts the record straight on the real impact of this case, and provides a reminder of the rules around investigating personal online activity at work.

Email privacy and the European Court's decision – 'spying' allowed?

The case of Barbulescu v Romania arose when a Romanian employer started an investigation into an employee's use of a work-related Yahoo 'instant messenger' service, which it suspected was being used by the employee for personal purposes. The employer warned its employee, Mr Barbulescu, that his Yahoo Messenger account would be monitored, but he protested that he only used the account for professional purposes. The employer accessed Mr Barbulesci's account and monitored private messages sent by him during working hours, to his fiancée and brother, concerning his health and intimate private life.

The employee's use of the messenger service was in breach of the employer's internal rules, which stipulate that it is "strictly forbidden" to "disturb order and discipline" at the employer's premises by using "computers, photocopiers, telephones, telex and fax machines for personal purposes".

Mr Barbulescu was, therefore, dismissed for his personal use of the internet at work.

The question for the European Court of Human Rights (ECtHR) was whether the employer's monitoring and use of the personal messages for the purposes of an investigation was contrary to Article 8 of the European Convention on Human Rights: the right to privacy. This right is not an absolute right, and may be limited if it is 'proportionate' to do so.

The ECtHR decided that in the circumstances of Mr Barbulescu's case, a fair balance had been struck between the employee's right to a private life and the employer's interest in checking that employees are undertaking work during working hours. The Court was persuaded that there was no reasonable expectation of privacy in relation to the employee's Yahoo messenger account because

  • it had been created for business purposes
  • there was a written policy in place
  • which was clear and well communicated
  • on proper prior notice; and
  • explicitly prohibited personal use of company facilities, including computer and internet use.

What does this mean for UK employers?

Mr Barbulescu's case has received a great deal of media coverage in recent weeks, some of it giving the misleading impression that employers now have a green light to act, as one of the ECtHR judges put it, "as a distrustful Big Brother lurking over the shoulders of their employees".

However, the decision does not provide employer's with carte blanche to 'snoop' on employees' personal emails or instant messages at work. Neither does it overrule previous ECtHR case law on the reasonable expectation of privacy, or existing UK legislation which place important limitations on employers' power to monitor their employees' private communications.

In partly dissenting from the decision in this case, one of the ECtHR judges noted that employees do not leave their right to privacy at the door when they arrive at work and new technologies make it easier than ever before to 'pry'. So, employers need to be careful in their approach, which should include

  • a transparent internal regulatory framework
  • a consistent implementation policy; and
  • a proportionate enforcement strategy.

The ECtHR's decision in the Barbulescu does not change existing UK law or practice relating to investigations and employee privacy at work; but it does provide a helpful reminder of some of the key principles. However, this is not the whole picture. Employers contemplating monitoring employee's online or email activity at work as part of an investigation will need to consider all, or some, of the following:

In addition, the duty of trust and confidence implied into an employee's contract of employment may be relevant, as monitoring activities may constitute a breach of this duty.

If an investigation into an employee's activities results in dismissal, then the usual rules of fairness under the Employment Rights Act 1996 would apply – and it is important to remember that not only does an employer require a fair reason for a dismissal, but the 'range of reasonable responses' test (developed under case law) would apply to both the dismissal and the investigation into any misconduct.

Equalities issues may also be engaged. Employees who believe they have been unfairly targeted by their employer's investigation or monitoring may also claim they have been unlawfully discriminated against, under the Equality Act 2010, as a result of their sex, race, age, disability, religion or sexual orientation. However, provided that there is a reasonable cause for concern and an employer follows the principles set out above in relation to the investigation then it may be that any unlawful discrimination could be justified (provided it is not direct discrimination).

Workplace investigations and online communications – how we can help

Whether you need a rapid report on complex capability and conduct allegations; a comprehensive investigation combined with mediation; a training programme for your internal investigators; or a 'health check' on your current employee monitoring / investigation policies, Bevan Brittan can provide these services to you on a fixed fee basis. We have a team of in-house investigators available to assist you (and access to external investigators) ensuring that complex issues are comprehensively addressed – thereby saving you management time and expense. Please contact us for further information or a quote.

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