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Patrick T. Elliott

ECHR: you can monitor the employees’ activities

The issue of monitoring employees has been raising heated discussions for years. The European Court of Human Rights has expressed its opinion on this matter. What differences does the latest judgement make?

The employer’s rights and the employee’s privacy

The judgement of the European Court of Human Rights (ECHR) of 12 January of this year, in the case of Bogdan Barbulescu from Romania, grants the employer with the right to monitor the employees’ activities in justified cases. In this specific case, the issue was how the management board of the company in which Barbulescu had been employed checked the method in which he was performing his duties. During an audit of archive conversations, it was found that he had used the company Internet messenger for private purposes. It was proven that the Romanian citizen was engaged in personal correspondence during work hours, which, according to the employer, had a negative effect on his productivity. As a result, his contract was terminated and he sued his company for this. ECHR sustained the judgements of previous instances stating that the employer did not violate Article 8 of the European Convention on Human Rights on the right to respect privacy, as the employer’s verification of the activities performed within working hours by persons employed at a company was natural and justified. Furthermore, the employer did not disclose any sensitive data of the people with whom Barbulescu kept in touch privately.

What differences does the judgement make?

It is said that the decision of the ECHR allows all European employers to monitor employee activities without any limitations. However, the contents of the judgement indicate that the rights in this matter always depend on the circumstances of a specific case. If companies monitor their employees only to make sure that they are performing their duties properly, as was the case with the company employing Barbulescu, they should not fear any legal consequences. This similarly applies if the control refers to the employee’s honesty or verifies whether they are not unintentionally causing a threat to the network safety. Above all, one must remember that monitoring is all about prevention and not surveillance.

Good practices in monitoring employee activities

In order that the monitoring of employee activities does not become a bone of contention, but brings about advantages to the entire company, one must bear in mind a few good practices related to this matter. They were remarked upon by the Portuguese judge of ECHR, Paulo Pinto de Albuquerque, who indicated that companies should base any potential monitoring on internal regulations that every employee should read and accept prior to the conclusion of the employment contract. What is more, the employer’s actions in this scope must be justified at all times. The fact that monitoring software has been installed cannot be the basis for the constant tracking of every mouse movement which the employee makes. Only when it is suspected that the employee’s behaviour, work performance or other factors may be to the company’s disadvantage, one should access the records of their professional activities which have been gathered by the software. The tools for IT infrastructure management, eg. the Users module of the Axence nVision programme offer a number of functionalities for the so-called computer forensics.

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