Privacy in the Workplace
Case note: Barbulescu v. Romania [2017] ECHR 754 (5 September 2017)
Background
The Applicant was employed as ‘engineer in charge of sales’ by a private company in Romania. As a part of this role, he set up an internet instant messenger account to allow him to interact with the company’s clients.
The company called him into a meeting and advised that they had been monitoring his use of the account. The company’s policies included a prohibition on staff personal use of computers. The Applicant was alleged to have contravened this provision in his use of the account. He denied this. On investigation, it transpired that the Applicant had indeed sent personal messages to his brother and fiancé. The company, therefore, dismissed the Applicant.
Judgement
The Applicant contended that this was a breach of his right to respect for his private life under Article 8 of the European Convention on Human Rights (ECHR). The domestic courts disagreed as did the European Court of Human Rights (ECtHR) – initially at least. On Appeal to the Grand Chamber of the ECtHR, it was held that the Applicant’s Article 8 rights had been breached.
That said, it should be noted that this latest judgement in concerned more with the failure of the domestic court to properly apply Article 8 rather that the specific issue of the monitoring of an employee’s communications. What the judgement does do is lay out, in some detail, a multi-criterion test to determine whether specific monitoring in the workplace is compliant with Article 8.
Comment
This final judgement is neither an outright privacy shield for employees nor a ‘snooper’s charter’ for employers. It does, however, highlight the need to have appropriate policies in place and to ensure that those policies are applied in a proportionate manner.
What is your policy? Is it human rights compliant? If you need any assistance in making sure it is up to the task, we can help you with that.
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