The European Court of Human Rights (ECHR) has backed an employee who was dismissed for sending personal messages at work.

By an 11-6 majority, the judges in the Grand Chamber of the ECHR concluded that there had been a failure to protect the employee’s right to private life.

Background to the case

Mr Barbulescu worked as a sales engineer. At his employer’s request, he set up an instant messaging account in order to respond to customers’ enquiries. It was alleged that he was sending private messages via this instant messaging account on his employer’s computer in his work time, which was prohibited by the employer’s policies. The employee was aware of the policy and had signed a copy of it. When questioned, Mr Barbulescu denied the allegations, saying that the messages he sent were for business use. Upon further investigation into the content of the communications, it was found that these were personal in nature and Mr Barbulescu was presented with a transcript of these communications. He was later dismissed for breaching the company’s policy.

The decision to dismiss was held to be fair by Romanian courts. He took his case to the ECHR, claiming that his country’s government, in particular their domestic courts, had failed to protect his right to private life.

The ECHR had to decide whether, in the context of disciplinary proceedings, monitoring an employee’s work emails contravened this right to privacy. The Court found that Mr Barbulescu’s right to privacy had been engaged, in that personal internet communications were, on the face of it, part of his ‘private life’. However, there had been no unlawful breach of this right for the following reasons:

• Mr Barbelescu’s employer had a clear policy which did not allow personal internet usage at work.
• Based upon what Mr Barbulescu had told them in the disciplinary investigation, the employer accessed his messages in the belief that they were work-related and not personal in nature and that such access was, therefore, legitimate.
• It was not unreasonable for an employer to want to verify that employees are completing their professional tasks during working hours.
• No other communications or documents on Mr Barbulescu’s computer were examined by his employer and, therefore, their search was deemed to have been limited in scope and proportionate.

Mr Barbulescu appealed again to the ECHR’s Grand Chamber.

Grand Chamber’s judgment

They ruled that there had been a breach of the employee’s right to privacy.

Although Mr Barbulescu was aware of the policy, he did not appear to have been informed in advance of the extent and nature of his employer’s monitoring activities, or of the possibility that the employer might have access to the actual content of his messages. They also said that there has been a failure to determine the particular reasons behind the introduction of the monitoring and whether the employer could have used measures which were less intrusive to the employee’s private life.

Comment

It is important to note that the ECHR is not an EU institution. UK judges are required to take the ECHR’s rulings into consideration, but they are not legally bound by them.

This ruling does not mean that employer cannot monitor employee communications at work or are not permitted to dismiss an employee on this basis, but it does reinforce that there are certain things employers need to think about, including employees’ right to privacy under human rights laws.

The Information Commissioner’s Office recommends that employers should carry out an impact assessment as it will enable employers to assess whether the monitoring they wish to implement is a proportionate way to address the problem they are facing. Employers should consider the purpose and effect of monitoring, whether there are less intrusive options, what obligations arise from monitoring and whether it is justified.

To find out what the law says about monitoring employees’ emails, read our guidance or speak to your Employment Law Adviser who can provide you with guidance.