In Barbulescu v Romania, an employee challenged the fairness of his dismissal for using his work Messenger Account for personal use.
Facts
Mr Barbulescu was an engineer for a heating company, he was required to set up a Yahoo Messenger Account to deal with client enquiries. The employer had a strict rule prohibiting any personal use whatsoever of the company's computers, internet or telephones. The employer suspected Mr Barbulescu of using the Messenger Account for his own personal use and monitored him over the course of a week.
The employer produced a 45-page transcript of his Messenger communications over that week. This included text of messages he had exchanged with his brother and his fiancée during that time, containing intimate personal information about his health and sex life. The employer disciplined Mr Barbulescu and dismissed him for unauthorised personal use of the internet in breach of the company’s rules.
Mr Barbulescu challenged the fairness of his dismissal but this was unsuccessful. The Romanian court found the employer was entitled to check that work was being done properly, and that Mr Barbulescu had been given adequate notice, both of the rule against personal use of company resources and of the fact that surveillance would be undertaken. Mr Barbulescu then complained to the European Court of Human Rights (ECtHR) that the Romanian government had failed to protect his right to a private life.
Law
Article 8(1) of the European Convention of Human Rights (ECHR) states that, "everyone has a right to respect for his private and family life, his home and his correspondence".
The right to respect for correspondence under Article 8 protects the right to communicate and the confidentiality of private communications. It amounts to a right to communicate without interception or screening by a third party. The ECtHR has previously held that it covers letters, email and telephone conversations, even at work.
The ECtHR considered the monitoring of an employee's telephone, email and internet usage most recently in the UK case of Copland v UK from 2007. The ECtHR concluded that Article 8 was infringed where an employer viewed emails in circumstances where there was no IT policy in the workplace and the employee was not told that they might be monitored.
Decision
The ECtHR dismissed the case holding that although Mr Barbulescu's Article 8 right to privacy had been engaged, the interference with the right had been proportionate.
Comment
Fraser Auld of Lindsays Employment team commented: “Although the court rejected Mr Barbulescu’s complaint it is important to note that the decision does not give employers carte blanche to read and monitor employee’s correspondence.
“In this case the employer had a very clear policy that there was to be no personal use of emails, internet or phones within the workplace, and the employer also had a very clearly communicated statement to employees that it would monitor all correspondence going on in the workplace. From that point of view the advice to UK employers wishing to monitor employee internet and email activity remains the same.
“Employers should have a clear IT policy setting out the rules on permitted use of email within the workplace and ensure there is a clearly worded statement in the policy warning employees that correspondence within working hours will be monitored to ensure compliance with permitted use.”
