ECHR Ruling – An employer’s right to snoop

ECHR Ruling – An employer’s right to snoop

IT Advocates

On the 12th January 2016, in Bărbulescu vs Romania, the European Court of Human Rights held that, in monitoring Mr Bărbulescu’s private messages sent via chat software and webmail accounts during working hours, there had been no violation of Mr Bărbulescu’s private life and was deemed reasonable in the context of disciplinary proceedings.

Facts of the case

Mr Bărbulescu’s was employed by a private company as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. In 2007, the applicant was informed that his Yahoo Messenger communications had been monitored and that the records showed that he had used the internet for personal purposes and was presented with transcripts of messages between his brother and his fiancée. The employer proceeded to dismiss Mr Bărbulescu for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.

The ECHR opined that it did not find it unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours

Mr Bărbulescu instituted a claim against his employer’s decision to terminate his employment contract before the domestic courts on the grounds that his employer had violated his right to correspondence in accessing his communications in breach of the Constitution and Criminal Code. His complaint was dismissed on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and that Mr Bărbulescu had been duly informed of the company’s regulations. The decision of the first court was also upheld by the Court of Appeal which confirmed that there was no violation of Article 8 (right to respect for private and family life) of the European Convention and that the employer’s conduct had been reasonable and that the monitoring of Mr Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach.

Following the Court of Appeal’s decision, Mr Bărbulescu proceeded to lodge an application before the ECHR based principally on his perceived violation of Article 8 of the European Convention on Human Rights.

ECHR Ruling

The ECHR opined that it did not find it unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours and noted that the employer had accessed Mr Bărbulescu’s account in belief that it contained client-related communications and it was not the employer’s intent to pry into Mr Bărbulescu’s private life.

all employers should explain clearly any rules that would allow them to check on their workers online activities

The court concluded that the domestic courts had struck a fair balance between Mr Barbuescu’s right to respect for his private life and correspondence under Article 8 and the interests of his employer. There had therefore been no violation of Article 8 of the European Convention.

Going forward, one of the seven judges added that all employers should explain clearly any rules that would allow them to check on their workers online activities. He stated that ‘all employees should be notified personally of the said policy and consent to it explicitly’.

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