Employee should have been notified that his correspondence would be checked
The grand chamber of the ECHR has now ruled more in favour of the right to privacy and reversed the original decision of its chamber decision – the worker had his rights breached when his private emails were monitored by his employer without his knowledge.
Romanian national Bogdan Bărbulescu was employed by a private company as the engineer in charge of sales between August 2004 and August 2007. As part of his role, he was asked to set up a Yahoo Messenger account to handle customers’ queries.
However, in July 2007, his employer informed him that his Yahoo Messenger activity had been monitored and it had been noted that he had been using the internet for personal purposes. The engineer initially denied this but he was then presented with transcripts of conversations with his brother and his fiancée relating to personal matters. He was dismissed in August 2007 for breaching the company’s internal regulations, which prohibited using company resources for personal purposes.
The employee took action in the Romanian courts. After the local judges found against him, he took his case to the ECHR, arguing that the messages were protected by Article 8 – the right to respect for private and family life, the home and correspondence – of the European Convention on Human Rights.
In January 2016, the ECHR chamber decided that his employer had acted lawfully when it monitored an employee's Yahoo messenger account; it ruled that the Romanian courts had struck a fair balance between the employee’s rights and the interests of his employer.
In this latest decision, the ECHR’s grand chamber didn’t agree with the chamber and ruled that there had been a breach of Article 8 and therefore the employee was entitled to compensation. In particular, it decided the national courts had failed to properly determine whether the engineer had received prior notification that his messages might be monitored or to what extent.
The judgment also noted that the national courts had failed to consider why the company had deemed it necessary to introduce monitoring in the first place, and whether it could have used measures less intrusive to the employee’s private life.
Points to Note:
The main point to take note of here is that workers have a right to respect for privacy in the workplace, and if an employer is going to monitor their emails and messages, it should (exceptional reasons aside) tell the worker that their communications might be monitored. Here, although the employee knew it was forbidden to use work computers for personal purposes, he had not been told that the employer was monitoring his communications.
So, the judgment does not bar you from monitoring internet use and emails entirely, but you must take certain steps when assessing whether a measure to monitor is proportionate to the aim pursued, and whether the employee is protected against arbitrariness.