The decision in Barbulescu v Romania, in the European Court of Human Rights (“ECtHR”), has attracted much press interest. It has been widely reported as granting employers a right to snoop on their employee’s online life. Let us ignore the actual facts for a moment (as most newspapers have done).
These stories would have us believe that employers can now read all employee communications with impunity, including those generated in private social media platforms like Whatsapp, Facebook, Twitter, etc. And, that employers can dismiss when they discover content that displeases them.
Of course, anyone with even a basic understanding of constitutional law will know that the decision does no such thing. ECtHR decisions are not binding on the UK (or any other country). Under s 2 of the Human Rights Act 1998, UK judges must do no more than take Strasbourg decisions ‘into account’. Essentially, this means judges should implement the fundamental principles articulated by the European courts and apply them in a manner that suits domestic circumstances. This includes the freedom to apply those principles differently than the Strasbourg court might, so long as the reasons for doing so are defensible. So the application of Barbulescu to UK law is not inevitable.
Moreover, an employer right to snoop-then-dismiss sits uneasily with domestic employment law. An employer would need to identify a contractual term reserving both a power to snoop and to dismiss. Next, it would need to show that breach of this term amounted to gross misconduct: that the nature of the breach justified dismissal because it went to the heart of the contract and, therefore, was so grave as to justify summary dismissal. If the employee were to qualify for unfair dismissal protection under s 95, Employment Rights Act 1996 then the employer would also need to show that dismissal was within the band of reasonable responses to this breach.
These are not easy tasks. Even snooping alone – without taking disciplinary action – could have serious consequences. It would conflict with the implied duty not to act in a manner likely to destroy or serious damage the relationship of mutual trust and confidence between employer and employee. Breach of this duty would provide grounds for a constructive dismissal claim in appropriate circumstances. So much for a right to snoop.
Indeed, this analysis brings us much closer to the facts of Barbulescu. We are told in the report that Mr Barbulescu was instructed by his employer to create a Yahoo Messenger account for business reasons (to respond to client enquiries). His contract stated:
“It is strictly forbidden to disturb order and discipline within the company’s premises and especially…to use computers, photocopiers, telephones, telex and fax machines for personal purposes.”
This provision was strictly enforced and there was evidence that this fact had been drawn to all employees’ attention. Disciplinary proceedings were commenced against Mr Barbulescu on suspicion of using the Yahoo account for personal purposes. It was only after he denied this charge that the company investigated, by accessing the account. They discovered a series of messages between Mr Barbulescu and his fiancée and his brother.
The ECtHR was satisfied, as the domestic courts had been, that the decision to dismiss was legitimate. There was a contractual term allowing dismissal, fair warning had be given that this provision was enforced strictly, and a proper disciplinary procedure followed. Moreover, the ECtHR endorsed the domestic court’s reasoning that the dismissal was justified because the employer was entitled to check ‘the manner in which professional tasks’ are undertaken and because misuse of e-mail/social media could ‘damage the company’s IT systems, or engage in illicit activities in the company’s name, or reveal the company’s commercial secrets’. The decision to dismiss, therefore, protected a legitimate interest in ensuring company property was not misused and that power was exercised in a proportionate manner.
In this sense, Barbulescu v Romania can be explained without specific reference to human rights. But, the human rights dimension adds extra significance – and, I will suggest, should give us pause for thought. Mr Barbulescu had complained that his employer’s actions, in reading his correspondence, amounted to an unjustified breach of his Article 8 rights to respect for private and family life. This right, though often mentioned by the press, is usually misreported. To be clear, it is a qualified right. It does not provide anyone with a right not to have their privacy interfered with. It provides them with the right not to have their privacy unjustifiably interfered with.
In an employment context, this places the emphasis squarely on the employer’s reasons for interference and therefore gives them an opportunity to defend their actions. So Barbulescu does not grant employers a right to snoop or indiscriminately dismiss based upon snooping. But, it does endorse dismissals where employers have a clear e-mail/social policy in place and act according to it. Moreover, it shows that such a dismissal can be justified even though no actual harm has been caused to the employer’s business interests through the breach. In Barbulescu, there was no evidence that the employee’s personal e-mailing had interfered with his work or caused some other harm to the employer (ie, the breakdown of company discipline referred to in the provision); the fact of using the employer’s computer in a prohibited manner was taken to be sufficient.
This is troublingly from a rights perspective. The applicability of human rights (under the European Convention on Human Rights (“ECHR”)) to UK employment law is a complicated matter. Put simply, employers are required to act compatibly with Convention Rights if they are a public authority. If they are not, then they are required to comply with the law. The law will need to be read compatibility with convention rights if it is statute-based (ie, rights found in the Employment Rights Act 1996). If the common law is at stake, eg, if the employee has a wrongful dismissal claim, then the courts might read it compatibly with convention rights but have not done so, so far, in a particularly activist way. The court’s refusal to apply human rights in this private law context is understandable, though I think mistaken.
The ECHR was a response to the atrocities of WWII and so can be understood as directed toward the state/citizen dynamic. Classic liberalism dictates that the state should treat its citizens as autonomous, progressive beings whose behaviour (though idiosyncratic sometimes) should be interfered with (coercively) only when unacceptable harms would follow. This principle can be seen in action, for example, in the CPS guidelines on social media prosecutions. Yet the principle is surely vital in an employment context too. The formation of personality and world-views does not occur in a vacuum. Individuals need space in which to form ideas about themselves and the world around them. They also need opportunity to test the strength of those ideas by sharing them with others. Such interactions lead to self-fulfilment and meaningful democratic participation. But equally all (barring the very few) need employment to exist and thrive. To deny privacy and free speech rights in an employment context is to undermine this grand vision for realising a progressive, fulfilled society.
There is a state interest, therefore, in regulating the interactions between employer and employee that engage (human) rights: to ensure that individual self-development (which leads to meaningful democratic participation) is not unduly hindered. Individual autonomy and the better functioning of society is undermined if employers can dismiss employees too readily for conduct and/or expression that they (the employers) find repugnant or inappropriate in the workplace. These rights-based arguments deserve greater recognition in UK employment law. Not only is it apparent that employers do dismiss on such grounds but also it is apparent that employment tribunal judges are prepared to protect employers when they do so (See, eg, discussion in P Wragg, ‘Free speech rights at work: resolving the differences between practice and liberal principle’, (2015) 44(1) Industrial Law Journal 1-28; V Mantouvalou, ‘Human Rights and Unfair Dismissal: Private Acts in Public Spaces’, (2008) 71 Modern Law Review 912-939).
This does not mean that judges should start evaluating conduct or expression to determine if it was instrumental to positive self-fulfilment or better democratic participation (or if the employer reaction was detrimental to those goods). That would silly. But what should follow, I think, is that the judiciary should reconsider its position on the applicability, at common law, of the ECHR to employment law principles and, moreover, that the courts should pay closer attention to the comparative harms at stake in these sorts of cases. They should be slower to accept that contract can readily impair – or waive – a citizen’s essential qualities (of autonomy, in particular). This could be achieved by reading into contracts an implied term that limitations with privacy and free speech must be compatible with Articles 8 and 10. This would require them to be satisfied that, given the harm caused to an individual through dismissal or action short of dismissal resulting from employer objection to their conduct or expression, the harm caused to the employer was sufficiently serious to warrant the sort of draconian responses that we see happening far too often.
Dr Paul Wragg, Associate Professor of Law, University of Leeds,, Associate Academic Fellow, Honourable Society of Inner Temple,, Editor, Communications Law
This post will be published in the February edition of Communications Law (Bloomsbury Press). Article submissions (of 7,000 to 12,000 words) are welcomed for the June edition. Copy deadline, 1 April. Contact Paul Wragg, firstname.lastname@example.org, for further details.