Eric Gilligan discusses a recent case on workplace monitoring and the Prime Minister’s threats to withdraw from the ECHR.

Last year there was significant publicity about a decision of the European Court of Human Rights in the case of Bărbulescu, whereby the rejection of the claim was widely described as a charter for employers to snoop on their employees at work. Following an appeal, however, Mr Bărbulescu’s claim that his right to privacy at work had been violated has just been upheld.

The case involved a Romanian engineer whose employer asked him to set up a Yahoo messenger account. The employer had very strict rules against any personal use of the work system. The company monitored Mr Babelescu’s use of the account and accused him of using it for personal reasons. He disputed this and was then presented with evidence that he had made extensive use of it to discuss aspects of his sex life and health with his fiancée and brother. He was subsequently dismissed and brought claims against his employer.

The Grand Chamber of the Court has now decided Mr Bărbulescu’s right to privacy under Article 8 of the European Convention was breached. The key part of the decision was that an employee’s private life at work cannot be reduced to “zero”. The national courts had not taken account of relevant issues including whether Mr Bărbulescu had received prior notice of monitoring or considered its nature and extent. Nor had they determined legitimate reasons justifying the monitoring or considered whether less intrusive measures could have been adopted. They had accordingly failed to strike the right balance between the employer’s rights to impose discipline and the employee’s right to privacy.

The case highlights the necessity for employers to take a proportionate approach to monitoring having regard to the need to leave some room for privacy in the workplace, but is of limited impact in the UK where legislation and guidance - particularly under the Data Protection Act - already sets out the parameters of legitimate monitoring by employers.

Meanwhile, UK workers may be more concerned about domestic developments. The EU withdrawal bill, while purporting to preserve all workers’ rights currently enjoyed by virtue of EU law, controversially excludes the Charter of Fundamental rights which enshrines in EU law both respect for private and family life and protection of personal data.

While Theresa May appears to have sidelined her previous plans to withdraw the UK from the ECHR and from the jurisdiction of the court which presided in the Bărbulescu case, there have been indications that this may be revisited after we leave the EU.

Although existing safeguards will continue to apply and indeed are due to be strengthened through implementation of the European General Data Protection Regulation next year (notwithstanding Brexit) these developments mean that, despite Mrs May’s assurances, workers’ rights in the UK look like they are about to be subject to a period of some significant uncertainty.