European-Wide ‘Snooping’ Warnings for Bosses

Posted on Tuesday, January 19, 2016

Bosses in the UK and across Europe have this week been urged by a vast array of different organisations and bodies to not indulge in invasive surveillance by routinely and blithely reading employee’s private messages.

One of the most passionate and notable such urgings came from Simon Walker, the director of the Institute of Directors, who stated that;

‘Employees should not be subject to Stasi-style surveillance at work. We would strongly urge businesses not to read an employee’s personal messages, apart from in the most exceptional circumstances.’

That begs the question therefore, of why such impassioned pleas for bosses not to take on the role of ‘big brother’ have come to light this week in particular. The answer is that it is in response to a fascinating case regarding a Romanian employer which was before Europe’s highest court this week.

The Romanian Case

The case which was considered by the European Court of Human Rights this week regarded employee Bogdan Barbulescu, who had claimed his rights had been infringed by his employer reading personal and private messages.

Those messages however, had been sent to Barbulescu’s fiancée and brother via a Yahoo messenger account which he had been asked to set up specifically for work purpose and during working time when private use of the internet had been banned.

When confronted about whether he had been using the messaging service for his own purposes too, Barbulescu had denied doing so and that combination of factors is what led the court to rule that his employer was justified in reading his messages, even though some were of a sensitive nature. That ruling in turn, was then what spurred such a swift and wide-ranging response all over Europe.

The Response

The response to the European Court of Human Rights ruling as indeed come from all across the spectrum, and the organisations who have had their say have ranged from those representing employers and employees to privacy and human rights groups.

Alongside the aforementioned urgings of the Institute of Directors, one of the other most interesting responses came from the European Trade Union Confederation which released a statement saying that the ruling does not give employers ‘a green light…to start snooping on staff.’

If that isn’t what the ruling does therefore, and surely any reasonable person should hope that it isn’t, what are the actually implications of the court’s decision?

What does the Decision Mean for You?

First and foremost it is important to note that the ruling in the Romanian case did not introduce any new rules regarding ‘snooping’, surveillance or anything else for that matter. What it did do however, was to test the rules currently in place that make similar surveillance legal in some circumstances and set something of a precedence.

The ruling after all, could have sent a signal to employers and domestic courts that such surveillance represented a breach of employee’s human rights, but it definitively did not do so. It was the failure to send such a signal then, which spurred so many organisations to warn employers that they should still not see themselves as having carte blanche to monitor their workers.

It also especially important for UK employers to realise that they still should not consider themselves as having the right to carry out surveillance of their employees communications, as UK law includes regulations that balance when such surveillance is lawful against when it is proportionate and necessary.

The main lessons to be taken from this whole affair therefore, seem to be that employers can carry out proportionate and reasonable monitoring of their staff but shouldn’t take things too far, and that employees should simple not have private conversations via work email or messaging accounts.