The European Court of Human Rights delivered their verdict on the case of Barbulescu v Romaina on 13 January 2016. In this case the employee was sacked in 2007 for breaching the company’s policy on the use of company property for personal use. After a long journey through the domestic courts and the European Court of Justice, the ECHR was the final attempt to gain a ruling in the employee’s favour. The applicant had previously sought to challenge the company’s decision through Romaina’s Labour Code which includes the incorporation of the European Convention on Human Rights and European Union’s data protection directive into their domestic statues.
In some business sectors, employees will be familiar with the monitoring of work systems as well as telephone conversations. The main focus of the case was the nature of the Company’s policy, the employee’s awareness of the policy and the nature of the monitoring. More importantly the ECHR role is to assess and rule on whether or not domestic authorities are upholding the convention through domestic statues and their implementation of the law.
When looking at the impact of this ruling in the United Kingdom it is likely to have little effect. Rather than previous ECHR cases such as Halford v UK, where a telephone was specifically set aside for personal use or Copeland v UK where minimal personal use was allowed but excessive use had been the subject of surveillance (rather than surveillance of the content itself). In this case, there was a policy in place which enforced a blanket ban on any personal use of company property, a policy of which the employee was aware. Within the UK a breach of policy would be subject to usual disciplinary procedures and the fairness of any dismissal would be assessed through the usual tests, and as such this is hardly a green light to snoop.
If employers in the United Kingdom wish to monitor employee’s communications, this needs to be for a proportionate legitimate aim and employees need to be made aware of their what the employer is doing and their obligations with regard to the approach taken, it is prudent for employers to maintain records showing that employees are aware of any relevant policies in place. Importantly, any disciplinary action taken needs to be consistent, for example where a policy is routinely ignored by the employer and employees it would be unreasonable to enforce a disciplinary sanction on a single employee.
Finally, although the company in the Barbulescu case provided transcripts of the communications, they had not acted on the content of the communication, other than the fact it was of a personal nature, and the dismissal was for a breach in their blanket usage policy. If an employer were to act on content of the monitored communications the hurdle of the band of reasonable responses would be higher, but certainly enforceable, such as cases where there is a breach of confidentiality, a breach of fiduciary responsibilities or potential criminal activity.
Jim Taylor LLM – 14 Januaryr 2016