Author Mark Richards
A recent ruling from the European Court for Human Rights (the ECHR) has overturned the sacking of a Romanian man who sent private messages at work – and it could have implications for both employers and employees in the UK.
Friday morning – and I know there is nothing you like better than reading about a complicated ruling from the European Court of Human Rights.
But bear with me. This may not be one of our more witty or light-hearted articles, but the subject is important. Probably more than important.
The case history
Back in 2007 a Romanian man, Bogdan Mihai Barbulescu, was sacked for sending private messages at work. He had used the Yahoo messaging service and some of the messages – sent to his fiancée – were ‘intimate in nature.’ But while he had been using Yahoo his employer had been using surveillance equipment and, having read the messages, duly sacked him. In 2016 a Romanian court ruled that the employer was within its rights to sack Mr Barbulescu – a ruling any employers reading this would probably have some sympathy with.
Mr Barbulescu challenged the decision, and now the ECHR has overturned the ruling of the Romanian court, stating that Mr Barbulescu’s privacy had not been ‘adequately protected,’ and that it was not clear that he had been warned his communications would be monitored, or that there was a good reason for the surveillance.
This is the European Court of Human Rights: there is no higher court so there is no further appeal – and if the UK enshrines this particular piece of law after Brexit, then it will apply in the UK. The ECHR added a footnote as well – that ‘an employer’s instructions could not reduce private social life in the workplace to zero.’
Employers will now be feeling dismayed. ‘He was supposed to be working: instead, he was using my time and my equipment to send ‘intimate messages’ to his fiancée. Of course, he should have been sacked.’ (It was ten years ago though – I would suspect that Mr and Mrs Barbulescu’s messages are rather less intimate now. Don’t forget the dog food and if you’re going into town we need dishcloths.)
But the vast majority of people reading this are not employers: they are employed – and this latest ruling from the ECHR may have a real impact on your working terms and conditions.
The interpretation of the ECHR ruling
First things first: does the ruling mean that an employer cannot ‘spy’ on the communications of his staff?
No, it does not.
In the UK it is (currently) the Data Protection Act and the Interception of Communications Act that set out the guidelines on what employers can monitor. Despite the ECHR ruling, they can monitor employee communications at work and can still dismiss an employee for private use. But – and this is a big but – an employer must make sure that employees know their communications might be monitored and there has to be a good reason for doing so.
In its article on the subject, the BBC quoted Catrina Smith, an employment partner at solicitors Norton Rose Fulbright:
“What [the ruling] will do is confirm that firms do not have leeway. Employers will need to be very clear with employees about what is and is not permissible. Employees will also need to be smarter about the way in which they use both personal and work devices.”
How will employers react to the ruling?
They are likely to react by reaching for the HR department and/or the legal team. What we are going to see is a raft of employers coming up with a raft of policies. Employment lawyers will unquestionably be saying to their clients, ‘You must have a policy.’ And many employers are going to react in a fairly straightforward manner: ‘My staff want 100% of their pay: I want 100% of their attention while they are at work. Send whatever message you like on your own phone in your own time, but when you are working, you are working.’
Is this realistic?
No, I do not think it is. As the ECHR said, it is virtually impossible to reduce someone’s private life to zero, be it social or family. No-one is suggesting that employees should be at liberty to swipe left and right on Tinder during office hours, but what do you do if the school sends a text saying your daughter has been hurt in a fall?
‘Grey area’ does not even come close…
Another potential problem is the increase in apps like WhatsApp and Facebook Messenger. There are more and more ways in which you can communicate with clients, customers and co-workers and that will inevitably blur the boundaries between personal and professional communication.
Then there is the question of paperwork. In the old days the law was clear: if you took a file home to work on the file was very obviously still the property of your employer. But today people do not take paperwork home: they save a file in Dropbox and take their iPad home.
These developments raise some potentially worrying – and very intrusive – questions. Are all the messages on your phone your property? Supposing some of them are about work? Does that mean your employer suddenly has access to all your messages? Or just some of them? And by taking that file home, have you unwittingly granted your employer access to everything you have in Dropbox?
The ideal solution
Employers are undoubtedly going to introduce policies on staff surveillance. Ideally, those policies will be drawn up in consultation with staff and will ensure that everyone is treated fairly and is seen to be treated fairly. If that is the case, all well and good. The Open Rights Group clearly thought this would be the case and welcomes the ECHR ruling: “The judgement is welcome,” said a spokesman. “If employers are going to monitor their staff’s communications they should explicitly tell them.”
But some employers will undoubtedly over-react and – in seeking to protect themselves – introduce policies which allow them access to things you would prefer to keep private. If that happens, employees need to introduce their own ‘policy’ and be very clear not to blur the lines between work and private communications. And if this means you need to ask your employer to give you a phone and an iPad specifically for work, so be it. Better that than he gains access to all those hot, steamy messages about dog food and dishcloths…