The European Court of Human rights considered whether the right to respect for private life and correspondence was breached if employers monitor employees’ personal communications at work.
They said it was not, subject to reasonableness/proportionality, in Barbulescu v Romania.
Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life. This was in breach of his employment contract. His employer, discovering this accidentally, dismissed him. Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.
They held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The European Court was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours.
This judgment is a good one for businesses. However, the key to be able to dismiss fairly is for it to be made clear in either the employees’ contract or staff handbook what is permitted with work devices and what is not. If this is unclear or other employees have been allowed to use it in the way that the employer is seeking to dismiss a particular employee for then a dismissal on these grounds may not be fair.
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