ECHR rules employer was wrong to monitor private messages @cipdlondon @cmi_managers #HR #Law

emaillockSource: Hayley Kirton, People Management.

Employee should have been notified that his correspondence would be checked

A worker had his rights breached when his private emails were monitored by his employer without his knowledge, the European Court of Human Rights (ECHR) ruled today, in a decision that legal experts have described as a landmark.

Romanian national Bogdan Bărbulescu was employed by a private company as the engineer in charge of sales between August 2004 and August 2007. As part of his role, he was asked to set up a Yahoo Messenger account to handle customers’ queries.

However, in July 2007, Bărbulescu’s employer informed him that his Yahoo Messenger activity had been monitored and it had been noted that he had been using the internet for personal purposes. The engineer initially denied this but he was then presented with transcripts of conversations with his brother and his fiancée relating to personal matters. He was dismissed in August 2007 for breaching the company’s internal regulations, which prohibited using company resources for personal purposes.

Bărbulescu took action in the Romanian courts. After the local judges found against him, he took his case to the ECHR, arguing that the messages were protected by Article 8 – the right to respect for private and family life, the home and correspondence – of the European Convention on Human Rights.

In a chamber judgment in January 2016, the ECHR ruled by six votes to one that the Romanian courts had struck a fair balance between Bărbulescu’s rights and the interests of his employer.

Bărbulescu appealed to the ECHR’s grand chamber, which today ruled by 11 votes to six that there had been a violation of Article 8. In particular, the ECHR decided the national courts had failed to properly determine whether the engineer had received prior notification that his messages might be monitored or to what extent.

The judgment also noted that the national courts had failed to consider why the company had deemed it necessary to introduce monitoring in the first place, and whether it could have used measures less intrusive to Bărbulescu’s private life.

James Froud, partner in the employment group at Bird & Bird, said the judgment did not bar employers from monitoring internet use entirely, but they “must take certain steps when assessing whether a measure to monitor is proportionate to the aim pursued, and whether the employee is protected against arbitrariness”.

Froud said it would be interesting to see if any similar cases were brought off the back of the ruling, and how the courts in the UK would react. “In truth, these cases will always turn on the specific facts, and therefore the decision is unlikely to result in a fundamental change in legal position. However, we may see a shift in emphasis, with courts requiring employers to clearly demonstrate the steps they have taken to address the issue of privacy in workplace, both in terms of granting employees ‘space’ to have a private life while clearly delineating the boundaries,” he said.

The Strasbourg-based ECHR is distinct from the European Court of Justice, which makes decisions on EU law.

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