The 2016 EctHR decision in the case of Barbulescu v Romania caused quite a stir, being seen, not altogether correctly, as an employer friendly decision. Its reversal, by the Grand Chamber, sheds some light on rights in the workplace.

What’s the issue?

EctHR decision

The judgment by the European Court of Human Rights, relating to the monitoring of a Romanian employee’s Yahoo! Messenger account by his employer, attracted a lot of media attention. Our view was that it was less controversial than it first appeared. This was partly because, while the UK, as a signatory to the European Convention on Human Rights, is bound by the judgments of the European Court of Human Rights, the scope of permissible employee monitoring in the UK was not extended. The judgment was concerned with the actions of the Romanian courts, not with EU law on employee monitoring.

What’s the development?

The Grand Chamber has now held by a majority (with six dissenting), that the Romanian Court of Appeal had not, after all, struck a fair balance within the margin of appreciation, between the employee’s right to a private life and the employer’s right to conduct a business.

What does this mean for you?

UK law allows employers to conduct minimal and proportionate monitoring of communications sent using an employer’s electronic communications system during business hours for specified business purposes such as checking that employees are complying with internet usage policies (and subject to various safeguards). In certain circumstances this may also include access to the content of those communications where necessary.

This judgment underlines the importance of having appropriate and lawful employee monitoring policies in place and making sure both that they are communicated to employees and that they are adhered to by the employer. While it does not change European law on employee monitoring, it does provide a useful summary of factors to be considered when assessing whether workplace communication monitoring complies with Article 8, ECHR (see paragraphs 121-122 of the judgment).

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Background

The employee, Barbulescu, was asked by his employer to set up a Yahoo! Messenger account to deal with client queries. Company policy was that it could not be used for personal communications. The account was monitored for nearly two weeks and Mr Barbulescu was informed that the monitoring showed he had used the internet for personal purposes. On denying this, he was shown a transcript of the communications and was subsequently dismissed for breach of company policy. Barbulescu relied on Romanian law to challenge the dismissal. The dismissal was upheld and he then appealed, arguing his emails were protected by Article 8 of the European Convention on Human Rights. The appeal was dismissed and the Romanian court held that the monitoring had been reasonable and the only way to establish whether there had been a disciplinary breach. Barbulescu next appealed to the European Court of Human Rights, arguing that the decision to terminate his contract had been based on infringement of his Article 8 rights. The Court dismissed the appeal.

The EctHR decision

At the heart of the original judgment was the conclusion that the Romanian domestic authorities acted appropriately in striking a fair balance between the rights of the individual to respect for the employee’s private life and the interests of his employer. In this case, the employer’s policy stated that its systems could only be used for professional purposes. It consequently expected it would only be accessing client-related communications. In addition, it was reasonable for the employer, in the context of Romanian labour law, to verify that its employees were completing their professional tasks during working hours (Romanian labour law specifically allows monitoring for this purpose provided the confidentiality of the employee personal data is preserved).

Grand Chamber decision on appeal

The key factors which led to the appeal being upheld were that the Romanian courts had failed to take into account that while Mr Barbulescu was aware of his employer’s internet use policy and had agreed to it, he was not made aware of the extent and nature of the monitoring which was carried out to establish his adherence to the policy. In addition, the Grand Chamber gave a wide interpretation to “private life”, effectively holding that this would include professional activities and activities taking place in a public context. It was unreasonable to restrict the rights of staff to use the internet for personal purposes completely: “an employer’s instructions cannot reduce private social life in the workplace to zero”, it said. Crucially, the Romanian courts had also failed to determine the specific reasons justifying the introduction of the monitoring and whether these were proportionate to the purpose or whether the employer could have used less intrusive measures to achieve the same result. The severity of the consequences for Mr Barbulescu also had to be considered (although, in fact, the extent of his knowledge of the internet use policy was among the factors which contributed to the lack of an award of damages).