The claimant in Barbulescu v Romania worked for a private company in Romania as a sales engineer. At his employer’s request, he set up a Yahoo Messenger account so that he could respond to clients’ enquiries. Company rules made it clear that using computers for personal purposes was not permitted. About three years later the employer told him that his Yahoo account had been monitored for a period of just over a week and that the records showed that he had used it for personal purposes on the company's computer during working hours. When the claimant challenged this, he was presented with a transcript of messages (some of which were very personal). He was dismissed for breach of the company’s regulations. After courts in Romania decided that there had been no breach of the Romanian Labour Code on disciplinary proceedings, the case went to the European Court of Human Rights (ECHR) last year where the Court decided that the employee's right to respect for private life and correspondence under Article 8 of the European Convention on Human Rights had not been infringed. Unusually, the case was reviewed by the ECHR's Grand Chamber and this Court has now (by a majority) come to the opposite conclusion, deciding that the Romanian courts had not struck a fair balance between employees' rights and employers' interests. In particular, they had failed to consider properly:
- the fact that the employee had not been informed of the nature or extent of the monitoring in advance, in particular the possibility that the employer might have access to the actual contents of his messages;
- the specific reasons justifying the decision to monitor and whether the employer could have used less intrusive measures;
- whether the employee's messages might have been accessed without his knowledge.
In the UK, courts and tribunals have to interpret legislation in line with the Human Rights Act, which includes the Article 8 right – and the government has confirmed that it won't repeal or replace the Act while Brexit is underway. The Act is relevant to unfair dismissal, for example. The key issue in the UK cases to date has been whether, on the facts, the employee has a reasonable expectation of privacy. This did not feature prominently in Barbulescu – the Court concentrated on the balance of employer and employee interests and whether the monitoring went further than necessary to achieve the employer's aim, posing questions such as:
- Was it just the flow of communications that was monitored or their content as well?
- Was the monitoring time limited and how many people had access to the results?
- Were the results of the monitoring actually used to achieve the desired aim?
Similar issues are raised in the section on data protection and e-monitoring in the Information Commissioner's Employment Practices Code, where the guidance is to confine e-mail monitoring to address/heading "unless it is essential for a valid and defined reason to examine content".