The Grand Chamber of the European Court of Human Rights has reversed a previous finding on the monitoring of personal messages on a work-related internet messaging account.

The facts

In January 2016, there was a great deal of press interest in a case before the European Court of Human Rights, where the court decided that an employer did not breach the employee's right to privacy by monitoring his email account. This decision has now been reversed.

The employee was dismissed for breaching his employer's IT policy through his personal use of the internet at work. As part of its investigation into the breach, his employer had accessed intimate messages sent to the employee's fiancée and his brother. The messages were printed and used in disciplinary proceedings, alongside details of an unsuccessful court case brought by the employee. The European Court of Human Justice found that this had not been in breach of his right to privacy. However, when the employee appealed, the Grand Chamber overturned this decision, finding that the Romanian courts had not adequately protected the employee's right to respect for his private life and correspondence, and that they failed to strike a balance between the relevant competing interests.

This was a finely balanced judgement, with six judges disagreeing with the conclusion that the courts had not adequately protected the employee's rights and had failed to strike a fair balance between the relevant competing interests. The dissenting judges commented that the employee had committed a disciplinary offence and that he had denied using his employer's resources for personal use, which was a lie.

What does this mean for employers?

This case will have limited relevance in the UK because this area is already heavily regulated by UK legislation. The factors to be taken into account, as set out by the Grand Chamber, are reflected in the Employment Practices Code published by the Information Commissioner's Office which recommends that before embarking on monitoring of communications, employers should carry out an impact assessment to demonstrate that they have achieved the correct balance between protecting workers' privacy and the interests of the business. In contrast to the position in this case, most employers will have policies in place which clearly set out the extent to which their employees' emails will be monitored. It is possible that the publicity in this case will prompt employees to consider their rights, and employers may therefore wish to review their policies checking, in particular, whether the policies are specific about the extent and nature of the monitoring.

Barbulescu v Romania