The European Court of Human Rights’ judgement will allow for more effective monitoring of employees

Until recently there was some uncertainty over whether employees’ work e-mails or other activities could be checked during working hours. Because they were afraid of incurring possible sanctions due to a violation of their employees’ right to privacy employers had tended to resign themselves to the fact that they could not carry out extensive monitoring of computers or work phone calls. Now the situation has changed, following the European Court of Human Rights’ judgement in the case of Bărbulescu against Romania (complaint no. 61496/08), and the court has set out certain conditions, under which the “monitoring” of employees during working hours is permitted.

The fundamental criterion for any monitoring is whether an employee can reasonably expect his or her right to privacy to be guaranteed when using electronic equipment during working hours. However, this does not apply if an employee has been warned of possible monitoring either explicitly or in an internal regulation banning the use of phones or computers for personal purposes. This type of monitoring can then be carried out, on the condition that the requirements for transparency, necessity, fairness and reasonableness are also met. Because this is essentially a matter of legal assessment we recommend that you should discuss any particular steps and measures with experts in labour relations.