Data Privacy in the Workplace – Two cases you need to know about!

Posted on: January 26th, 2018

The first case involves email surveillance in the work place. 

Bărbulescu v Romania

This case involved an employee, Mr Bărbulescu, who sent personal emails from an office account to his fiancé and brother. Mr Bărbulescu was originally asked by his employer to open a Yahoo email account to facilitate communication with his clients. Mr Bărbulescu was informed by his employer that his emails would be monitored; however, at no point did his employer define the extent to which they would monitor emails. Mr Bărbulescu was subsequently fired and informed that this was due to his breach of the company’s strict prohibition of email use for personal reasons.

The European Court of Human Rights considered whether Mr Bărbulescu’s right to private life under Article 8 had been breached. The Court centered its focus on the principle of ‘proportionality’. Unlike the recent case of Lopez Ribalda & Ors v Spain, the Court found that the Company had provided sufficient warning to the Mr Bărbulescu that his emails would be monitored and the monitoring of emails was proportionate. However, Mr Bărbulescu had not been informed of the extent and the nature of email monitoring. The Court therefore concluded that the employee’s right to private life had been breached.

What can we learn?

It remains that employers do not have the right to monitor an employee’s personal emails and WhatsApp messages, for example. Whilst the monitoring of an employee’s work emails can be justifiable; however, there are important steps that you need to take to minimize your risk of infringing an employee’s rights: 

  1. Notify the employee that you might take measures to monitor work email communication
  2. Outline the extent of monitoring
  3. Consider how you can justify the need to monitor employee’s work emails
  4. Consider whether you could monitor communication in a less intrusive manner
  5. Determine what the consequences are to the employee (if any)
  6. Confirm that there are adequate safeguards in place

The second, social media.

Creighton v Together Housing Association Ltd

Since 2015, when the Employment Tribunal first considered an employee’s misuse of Twitter which ultimately led to the termination of the employment contract, cases of employees being dismissed for historic tweets have become more frequent. It is of course not only the use of social media and ill-fated consequences in an employment context which has been in the media spotlight (Phil Neville being the most recent examples), but also the knock-on effects for those in the public eye who may have made ill judged use of the 140 (now 280) character limit!

We often hear of cases in which an employee’s historic social media comments and opinions come to light as a result of a wider investigation into the employee. For example, in the case of Creighton v Together Housing Association Ltd, a long serving employee was dismissed for making derogatory comments about his colleagues and employer on Twitter. The employee in question was actually the subject of an investigation into alleged bullying. As a result of the investigation, the employer uncovered the historic Tweets and he was dismissed on grounds of misconduct. The employee tried to argue that, given the Tweets were over 3 years old, they should have no bearing. However, the EAT found against the appeal and agreed that historic Tweets, and therefore wider social media content, are relevant.

This case is yet another stark warning to employees not to post any derogatory or negative comments about an employer or fellow colleagues on social media. The case also highlights the opportunity social media can provide to employers to fully investigate complaints such as harassment and bullying and therefore the importance of effectively implementing company social media policies.

It is important to remember that successful cases in the Employment Tribunal have been those in which an employer operates a robust social media policy and importantly, the employees are fully informed about the same.

If you require assistance with implementing a social media policy or discussing data privacy in the workplace, please contact the Employment Team.