Is there such a thing as privacy in the workplace?

What employers need to know about monitoring within the working environment.

Employers may wish to monitor their workplace for a number of reasons. The Data Protection Act doesn’t prevent employers from monitoring workers, but employers should remember workers are entitled to some privacy at work.

You may have heard that the Grand Chamber of the European Court of Human Rights has reversed a previous ruling in relation to workplace monitoring. Now ruling in favour of employee privacy…

In case of Barbulescu v Romania 2017 the Grand Chamber held by a majority that Mr Barbulescu’s Article 8 rights to privacy had been infringed. The employer’s restrictive internet policy meant that it was open to question whether there was a reasonable expectation of privacy in this situation.

The court noted that “an employer cannot reduce private social life in the workplace to zero”. An employer cannot simply invade employee privacy by using oppressive measures.

The Grand Chamber set out factors to be considered when assessing the monitoring of workplace communications. These should be considered by employers when thinking about monitoring staff use and emails:

• Has the employee been notified of the possibility that the employer might monitor correspondence and other communications?
• The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy.
• Whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content.
• Would it be possible to establish a less intrusive monitoring system?
• What are the consequences of the monitoring for the employee?
• Has the employee been provided with adequate safeguards?

This is the first time that the Court has examined a case concerning the monitoring of an employee’s electronic communication by a private employer. It is now more important than ever for an employer to have a code of conduct or policy that covers workplace monitoring.

What does all of this mean for my business?

In light of the judgment in favour of privacy, can an employer monitor an employee’s emails and/or internet use?

The answer is Yes… but employers should review their policies and ensure that explicit warnings are given to employees about monitoring of workplace emails and internet use.

Not sure about your obligations?

Our Employment and HR team can answer any enquires you may have in relation to monitoring. We can also draft new or review your current workplace monitoring policies and company handbooks.

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