Bărbulescu v Romania [12.01.16]

What is your employee getting app to? The recent case of the European Court of Human Rights (ECHR) concerned Bărbulescu’s dismissal by his employer for using the internet for personal communication during working hours, in breach of the company’s internet usage policy. The ECHR found that Bărbulescu’s right to private life and correspondence had been engaged but that his employer’s monitoring of his communications had been reasonable in the context of dismissal proceedings.

Background 

Bărbulescu had created a Yahoo Messenger account for the purpose of responding to client enquiries. But it became apparent to his employer that Bărbulescu was sending personal messages. His employer commenced disciplinary proceedings and later terminated his contract of employment as the company prohibited the use of company computers, internet or telephones for personal reasons. 

Bărbulescu challenged his dismissal in the Romanian Courts. His complaint was initially dismissed as his employer had complied with disciplinary proceedings and had given him adequate notice of the company’s internet usage regulations. The Romanian Court of Appeal held that the employer had acted reasonably, as the only way that they could determine whether Bărbulescu had acted in accordance with the employer’s internet regulations was to monitor his communications. 

ECHR 

Relying on Article 8 ECHR, Bărbulescu brought a claim against the Romanian government in the ECHR, arguing that it had failed to protect his rights to privacy and correspondence. The ECHR held that Article 8 was engaged as the employer had accessed Bărbulescu’s Yahoo Messenger account and had obtained transcripts of communications. However, the ECHR considered that it was not unreasonable for an employer to want to check that an employee was carrying out work related tasks during working hours. The ECHR concluded that there had been no violation of Article 8 - the Romanian Courts had struck a fair balance between Bărbulescu’s right to private life and the interests of his employer. 

Comment 

The ECHR’s decision has generated media coverage in the UK, some of which gives the impression that the decision permits an employer to read employee communications on apps such as Yahoo Messenger, WhatsApp and Facebook Messenger. The decision, however, does not in fact go this far. Rather, it must be read in light of existing ECHR case law on privacy at work and UK legislation (Data Protection Act 1998 and Regulation of Investigatory Powers Act 2000), which places limitations on the extent to which an employer can monitor employee communications. Employers are also encouraged to communicate clear policies to their employees, to mitigate against claims for unfair dismissal. Looking forward, the growing phenomenon of “Bring Your Own Devices” to work, will lead to a further blurring of the lines between professional and personal communications in the workplace. The privacy implications and an employee’s expectation of privacy when using their own device for work and personal matters, is yet to be examined by the courts.