Barbulescu v Romania
Our next case takes a slight detour away from traditional employment law to the European Court of Human Rights via the scenic route of Romania. The question here, is:
How does the right to a private life interact with an employer email and computer use policy?
Mr Barbulescu, the Claimant, worked in sales and was asked to set up a Yahoo account to liaise with customers of his employer. The company’s rules stated he must not use the account for personal messages and the Claimant said he abided by those rules.
However, without the Claimant’s knowledge, his account was monitored and it was found he had been messaging his fiancé and brother. He was dismissed and told that his account had been monitored. The Claimant brought a claim under Article 8, the right to a private life, and the Romanian ET-equivalent Court dismissed his claim.
After the rejection of his subsequent appeal to the European Court of Human Rights, the Claimant appealed to the Upper Chamber of the ECHR. In an 11 to 6 majority verdict the ECHR overturned the previous decision. It found that the Claimant had had his right to privacy breached and that the Respondent was wrong to dismiss him. It added that in all but exceptional circumstances an employee should be told if their email is being monitored.
The takeaway point:
In this case the employee’s right to a private life overrules an employer’s computer use/email policy. Whilst ECHR Judgments are not binding decision on Courts of England and Wales it will be a guideline for future decisions in Employment Tribunals.
Given the nature of instant communications, social media and the use of technology at work, the line between personal and professional is becoming increasingly grey and this case is most likely the first step in attempt to make things clearer. When deciding whether to monitor an employee’s emails it is best to either notify them in advance or seek legal advice.
The impact of this on monitoring of employee social media during recruitment and employment could also fall under this judgment. Theoretically the same right to a private life could apply to both email accounts and social media. However, in many cases, social media accounts are usually public and can be viewed by anyone.