In the case of Bărbulescu v Romania 61496/08 [2016] ECHR 61, the European Court of Human Rights has dismissed a claim by an employee of a Romanian company, who alleged that his employer had breached his right to a private life by monitoring his email usage.

Facts

Mr Bărbulescu is a Romanian national who was employed by a private company in Bucharest. His employer asked him to set up a Yahoo Messenger account for the purpose of responding to clients' enquiries. The employer had a strict IT policy, which clearly forbade the use of the company's computers and other IT systems for personal usage.

The employer monitored Mr Bărbulescu's usage of the Messenger account for an eight day period in July 2007 and discovered that he had been using it for personal communications with his fiancée and brother during work hours. The employer subsequently dismissed Mr Bărbulescu for breaching the company's IT policy.

Mr Bărbulescu challenged his dismissal under Romanian labour law, arguing that the decision to dismiss him was invalidated because his employer had violated his right to correspondence under the Romanian constitution. The Bucharest County Court found that his employer had not breached the Romanian constitution or domestic labour law by monitoring Mr Bărbulescu's communications and held that his dismissal had been valid.

Mr Bărbulescu appealed to the Bucharest Court of Appeal and added a claim that the employer had breached his right to a private life under Article 8 of the European Convention on Human Rights (Convention). The Court of Appeal dismissed Mr Bărbulescu's appeal, holding that the company's conduct had been reasonable and the monitoring of the Messenger account had been the only way the employer could establish if Mr Bărbulescu had breached its IT policy.

Mr Bărbulescu brought a claim in the European Court of Human Rights (ECtHR), alleging that the Romanian national courts had failed to protect his right to respect for private and family life under Article 8 of the Convention and that he had not received a fair trial in breach of Article 6 of the Convention.

European Court of Human Rights decision

The ECtHR dismissed both of Mr Bărbulescu's complaints.

The ECtHR gave detailed consideration to whether the Romanian national courts had failed to protect Mr Bărbulescu's right to respect for private and family life under Article 8. The ECtHR considered that telephone calls and emails sent from work, as well as the monitoring of personal internet usage by an employer, are covered by the notion of 'private life' under Article 8. The key question was whether Mr Bărbulescu could have had a reasonable expectation of privacy in relation to communications sent from his Messenger account and a reasonable expectation that his communications from the account would not be monitored.

The ECtHR noted that the usage of the employer's computers and IT systems for personal use was prohibited and that the company had expressly instructed Mr Bărbulescu to create the account for business purposes. The ECtHR also took into account that the company's monitoring had been restricted to Mr Bărbulescu's Messenger account and that it had accessed this on the assumption that only work-related messages would be present, as it had expressly instructed him to create the account for business use.

The ECtHR held that the company's monitoring of Mr Bărbulescu's Messenger account had been proportionate and that there was nothing to indicate that the Romanian courts had failed to strike a fair balance between the company's interests and Mr Bărbulescu's rights under Article 8.

Comment

Although the media has described this decision as giving a 'green light' to employers to snoop on employees' private conversations, it does not overrule previous ECtHR case law on the reasonable expectation of privacy and nor does it override existing UK legislation, which places limitations on employers' rights to monitor their employees' private communications, such as the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000.

In addition, while Mr Bărbulescu's summary dismissal was fair under Romanian labour law, it does not necessarily follow that a UK employment tribunal would conclude that sending personal messages while at work is sufficiently serious to justify termination of employment without notice.

Therefore, UK employers should continue to proceed carefully when monitoring their employees' usage of email and IT systems, ensure that they have up to date policies in place and give due consideration to appropriate disciplinary sanctions where employees are found to be in breach of such policies.