Eric Gilligan: Is your employer allowed to spy on you?

Employers need to take a 'proportionate approach' to monitoring their staff, says Eric Gilligan. Picture: Getty Images/iStockphoto
Employers need to take a 'proportionate approach' to monitoring their staff, says Eric Gilligan. Picture: Getty Images/iStockphoto
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Last year there was significant publicity about a European Court of Human Rights decision whereby the rejection of a claim was widely described as a charter for employers to snoop on their employees at work.

However, following an appeal, Mr Barbelescu’s claim that his right to ­privacy at work had been violated has been upheld.

Workers’ rights look like they are about to be subject to significant uncertainty

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The case involved a Romanian engineer whose employer asked him to set up a Yahoo messenger account. The employer had very strict rules against any personal use.

The company monitored Mr Babelescu’s account and accused him of using it for personal reasons. He disputed this and was then presented with ­evidence that he had made extensive use of it to discuss aspects of his sex life and health with his fiancée and brother. He was ­subsequently dismissed and brought claims against his employer.

The Grand Chamber of the Court has now ­decided Mr Barbelescu’s right to ­privacy under Article 8 of the European Convention was breached. The key part of the decision was that an employee’s private life at work cannot be reduced to “zero”.

The national courts had not taken account of ­relevant issues including whether Mr Barbelescu had received prior notice of monitoring or considered its nature and extent. Nor had they determined ­legitimate reasons justifying the monitoring or ­considered less ­intrusive measures. They had accordingly failed to strike the right balance between the employer’s rights to impose discipline and the employee’s right to privacy.

The case highlights the necessity for employers to take a proportionate approach to monitoring, but is of limited impact in the UK, where legislation and guidance already sets out the parameters of legitimate monitoring by employers.

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Meanwhile, UK workers may be more concerned about domestic developments. The EU withdrawal bill, while purporting to preserve all workers’ rights enjoyed by virtue of EU law, controversially excludes the Charter of Fundamental rights which enshrines in EU law both respect for private and family life and protection of personal data.

While Theresa May appears to have sidelined her plans to withdraw the UK from the Convention on Human Rights and from the jurisdiction of the Court which presided in the Barbelescu case, there have been indications that this may be revisited after we leave the EU.

Although existing safeguards will continue to apply and be strengthened through implementation of the European General Data Protection Regulation next year, these developments mean, despite Mrs May’s assurances, workers’ rights in the UK look like they are about to be subject to significant uncertainty.

• Eric Gilligan, partner, head of employment, ­Stronachs LLP

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