Monitoring employee activities at work – transcript

The following is a transcript of an interview with Diana Rodriguez Redondo, Partner, conducted by Liz Bayliss, Senior Expertise Lawyer.

Hello. Welcome to this episode of our Ashurst Employment World@Work podcast series. I'm Liz Bayliss. I'm an Expertise Lawyer based in our London office.

Today we are going to look at an issue which I think employers often find quite tricky and that's the extent to which they can legitimately monitor their employees whilst they are at work. How can this be done without breaching the employees' right to privacy? To discuss this, I'm joined by Diana Rodriguez Redondo, a partner in our Madrid employment practice. 

Hi Diana. Thanks for joining us.

Hi Liz. It's my pleasure.

Now the reason that we're focusing on this topic today is because there have been two recent, really interesting, decisions of the European Court of Human Rights in this area which I'm sure will be of interest to employers in Europe. The first of these cases is called Barbulescu vs Romania where judgment was given last September. Can you tell us a bit about this case, Diana?

Yes, sure. The case concerned a Mr Barbulescu who was employed by a Romanian company as a sales engineer. He was asked by his employer to open a Yahoo Messenger account for professional purposes in order to respond to customer queries. Then, three years later, Mr. Barbulescu was notified by his employer that his communications had been monitored for a period of nine days and that there was evidence he had made use of the Yahoo Messenger account to send personal messages. This was contrary to the company's policy which stated that the use of its computers for personal reasons was prohibited.

At first, Mr Barbulescu denied having used the account for non-professional communications, so he was presented with a transcript of his communications with his brother and his fiancée which supported the allegation that he had breached the company’s policy. And as a result, Mr Barbulescu was dismissed.

Mr Barbulescu decided to challenge the employer’s decision in the Bucharest County Court. He argued that his dismissal was null and void because his employer had violated his right to keep his correspondence private as set out in the Romanian Constitution and Criminal Code.

So what were the issues which the court had to consider?

Well, the Court identified two different and contradictory interests. The first was Mr. Barbulescu's right to respect for his private life and correspondence. The second was the employer’s right to take measures in order to ensure the smooth running of the company.

The Romanian Court held that the employer had acted in accordance with the law, as Mr. Barbulescu was duly informed about the policy prohibiting employees from using professional email accounts for personal reasons.

Mr Barbulescu then challenged the decision before the Bucharest Court of Appeal but his appeal was dismissed

And I think this is when the European Court of Human Rights got involved? Is that right?

Yes, you're right. Mr. Barbulescu lodged an application before the European Court of Human Rights arguing that his dismissal had been based on a breach of his right to respect for private life and correspondence and that the domestic courts of Romania had failed to protect that right.

The Court found that, although article 8 of the Convention was applicable, the Romanian state had to strike a fair balance between the employee’s right to his private life and correspondence, on the one hand, and the employer’s interests, on the other hand.

The Court came down on the side of the employer. It found that it was reasonable that an employer would wish to verify that its employees were completing their professional tasks during working hours. It also considered that the employer acted within its disciplinary powers since it had accessed the Yahoo Messenger account on the assumption that the information in question was related to professional activities only and that such access had therefore been legitimate.

And did Mr. Barbulescu take his case further?

Yes, indeed. He appealed to the Grand Chamber of the European Court of Human Rights which has the authority to overturn decisions of the lower Chamber.

The Grand Chamber reiterated the broad understanding of the right to private life under Article 8 of the Convention. It confirmed that professional activities and communications through email do fall within the definition of private life and are therefore entitled to protection. Nevertheless, there must be limits to that protection. The Grand Chamber re-affirmed that there is a positive obligation on the state to strike a fair balance between competing interests i.e. the subordination of the employee to the employer and the protection of employees' rights. 

The Grand Chamber then went on to define some general principles which apply when employers are considering monitoring employees. These should be taken into account when assessing whether the right to privacy of employees was violated.

I think it would be really helpful for employers, Diana, if you could run through what those general principles are.

Sure. These are the key factors to take into account.

Firstly, was the employee notified of the possibility that the employer might take measures to monitor correspondence?

Secondly, what was the extent of the monitoring and the degree of intrusion into the employee’s privacy.

Thirdly, has the employer provided legitimate reasons to justify the monitoring of communications and accessing their content?

Fourthly, would it have been possible to establish a monitoring system based on less intrusive measures?

Fifthly, what were the consequences of the monitoring for the employee who was subject to it?

And finally, was the employee provided with adequate safeguards?

Based on the evidence, the Grand Chamber found that Mr. Barbulescu had been informed of the company’s internal regulations and that the policy clearly established that the personal use of computers was forbidden.

Nevertheless, the fact that Mr Barbulescu might have his private communications monitored was not clear as he was not informed of the extent and the nature of the monitoring activities nor of the possibility of the employer having access to the content of his communications. As a result, therefore, the Grand Chamber upheld Mr. Barbulescu's appeal.

Thanks, Diana. I think that's a really useful analysis of the Barbulescu case. Perhaps you could also tell us briefly about the second case which we mentioned earlier.

Yes, this is the case of Lopez Ribalda and Others vs Spain. Judgment was given in this case by the European Court of Human Rights in January this year.

It concerned five employees who worked as cashiers in a supermarket. Their employer noticed irregularities between stock levels and what was actually sold on a daily basis so the employer decided to carry out an investigation through video surveillance. The company installed both visible and hidden cameras.

The purpose of the visible cameras was to record possible customer thefts and they were pointed toward the entrances and exits of the supermarket. The purpose of the hidden cameras was to record and control possible employee thefts and they were zoomed in on the checkout counters, which covered the area behind the cash desk. 

The company gave its workers prior notice of the installation of the visible cameras. However, neither they nor the company’s staff committee were informed of the hidden cameras. About two weeks later, all the workers suspected of theft were called to individual meetings. During those meetings the applicants admitted their involvement in the thefts in the presence of their union representative and the company’s legal representative. 

The workers were dismissed on disciplinary grounds as they had been caught on video helping co-workers and customers to steal items and also stealing themselves. 

The employees challenged their dismissal but it was found to be fair by the Spanish Courts who accepted the video evidence as having been obtained lawfully.

The workers considered that the covert video surveillance of their place of work had seriously interfered with their right to privacy and brought the case to the European Court of Human Rights. 

The Court found that the covert video surveillance was not lawful and thus violated article 8. The Court took into account the fact that the video surveillance took place over a prolonged period of time and did not comply with the requirements stipulated by the applicable data protection act. In particular, the surveillance did not comply with the obligation to explicitly, precisely and unambiguously inform all persons concerned in advance about the existence, and type, of monitoring system to collect personal data. The Court observed that the rights of the employer could have been safeguarded, at least to a degree, by other means, notably by previously informing the applicants, even in a general manner, of the installation of a system of video surveillance and providing them with the information prescribed in the data protection legislation. The Court accepted that the applicants suffered non-pecuniary damage and awarded each of the five applicants a sum of 4,000 euros.

I think some employers will be quite shocked by the outcome of this case, given that the employees in question had been found stealing from their employer.

Yes, I think you're right, Liz. It really emphasises how important it is for employers to follow the correct procedures and to take account of the factors which the European Court of Human Rights has set out and which I mentioned just now. We are not saying that employers can never monitor employees but, before they do so, they need to undertake a proper analysis of the position. They also need to think about data protection laws, particularly the new EU General Data Protection Regulation which comes into effect in member states on 25 May this year.

Thank you, Diana. I think we will end on that salutary note. If any of our listeners have any questions about this topic or would like more information, do feel free to contact Diana.