The decision in September 2017 of the Grand Chamber of the European Court of Human Rights (ECtHR) held that an employer had infringed an employee’s rights under Article 8 of the European Convention on Human Rights when it dismissed him after monitoring his electronic communications and their contents (Bărbulescu v Romania (Application no. 61496/08) [2017] ECHR 742).
This ruling overturns the earlier decisions of the domestic Romanian Courts and the ECtHR.
The company strictly prohibited personal use of its IT equipment. However, it was not made clear that the content of communications would be monitored or intercepted. Mr Bărbulescu set up an instant messaging account to respond to customer queries at the request of his employer. The company produced a transcript of Mr Bărbulescu’s instant messaging account communications; it included messages Mr Bărbulescu had exchanged with his brother and fiancée, which contained intimate and personal information. Consequently, Mr Bărbulescu’s employment was terminated.
Mr Bărbulescu brought an action to challenge his dismissal to the Grand Chamber of the ECtHR. The Grand Chamber reversed the previous finding and found that Mr Bărbulescu’s Article 8 rights had been infringed. The Court held that the Romanian courts had failed to strike a fair balance between the relevant competing interests.
The Court made it clear that an employer can monitor an employees’ communications. However, the employer’s intention to monitor an employee must be clearly set out to the employee before the commencement of employment. An employee must be provided with clear advance notification about the potential monitoring and its nature and extent.
Should you have any queries regarding this ruling or any questions regarding employment law, please contact our employment partner, Joseph Oates, on: 01892 515022
By Joseph Oates, Partner
