The long-running case of Barbulescu v Romania has yet again generated headline news regarding an employee’s right to privacy in the workplace.
It was only eighteen months ago that some media reports were suggesting that the European Court of Human Rights (ECHR) had given employers an absolute right to monitor personal messages sent during working hours. We highlighted at the time that the decision fell a long way short of granting employers a ‘snooping charter’.
The latest headlines follow Mr Barbulescu’s successful appeal to the Grand Chamber of the ECHR which has now found that that the Romanian law had failed to adequately protect his right to a private life.
The background to the case was that Mr Barbulescu was employed in sales and was asked to set up a Yahoo Messenger account to answer clients’ enquiries. He had been warned not to use it for private matters. Three years after the account was set up he was told that his account had been monitored and he had been misusing it by sending personal messages to his girlfriend. He was presented with transcripts of his communications and dismissed.
He brought proceedings in the Romanian courts on the grounds that his right to privacy under the European Convention on Human Rights had been breached. His claims were dismissed by the national courts and the first tier of the ECHR.
The ECHR’s Grand Chamber has now found in Mr Barbulescu’s favour. It held that the Romanian national courts had failed to strike a fair balance between a worker’s right to privacy and those of an employer to take measures in order to ensure the smooth running of the business. In particular, it found that the courts had not determined whether Mr Barbulescu had been notified that his employer might introduce monitoring measures or why the company had deemed it necessary to introduce monitoring in the first place.
The judgment is a reminder that employers must consider the extent of monitoring required. Is there is a less intrusive means of ensuring that workplace rules are not being breached? If it is decided that monitoring is required then it will be important that the employees are made aware. The decision highlights that just telling employees that private communications are not permitted will not be sufficient; it will also have to be made clear to the employees that monitoring will take place.
The key points in the judgment reflect to a large extent a number of the steps recommended in the Employment Practices Code published by the UK’s Information Commissioner Office.
- Employers should consider what level of monitoring is necessary by carrying out an impact assessment.
- If it is decided to monitor electronic communications, a policy should be established that sets out in clear terms the reasons why and how the monitoring will be carried out.
- Rules regarding communications and monitoring will need to be clearly communicated to staff.
This blog post was written by Christopher Davies. For further information, please contact:
Christopher Davies, professional support lawyer, Employment
T: 0161 836 7936