Employee’s privacy in the work place: In a very interesting development in the case of Barbulescu v Romania, a decision made by the European Court of Human Rights (ECHR) in January 2016 has been overturned. The ECHR decided that a Romanian employer had acted fairly when it monitored an employee’s Yahoo account, which was being used during working hours contrary to company policy and dismissed him as a result.
The employer had asked the employee to set up a Yahoo account for business communications but when they checked a log of his activity, they discovered that he was using it to send personal and sometimes very intimate messages to his brother and fiancé. The employee was challenged about this and a transcript of the messages provided to him. The employee argued that the employer had breached his right to a private and family life and correspondence but was unsuccessful.
Subsequently there was a very rare appeal to the Grand Chamber, the highest chamber within the ECHR, which found in favour of the employee. It held that Romanian law had failed to strike a balance between the interests of the employer and employee.
The Grand Chamber stated that (save for exceptional reasons) if an employer wants to monitor employees’ emails and/ or messages, then it is crucial that employees are told this may happen. Whilst in this case the employee was fully aware that he was not permitted to send personal messages during working time, he had not been told that his messages on Yahoo may be monitored.
Decisions of the ECHR are not binding on UK courts but they must take them into consideration. This case strengthens an employee’s right to privacy in the workplace at a time when there is an ever increasing use of social media for both private and business purposes. It will be interesting to see how judges view this case when there is already considerable conflict between an employee’s right to privacy and an employer’s ability to conduct internal disciplinary procedures.
It is more important than ever that companies have clear and up to date policies in place regarding IT, emails and social media.
Senior Associate of Employment & HR Law at Berry Smith Lawyers
Please contact us if you would like to discuss having a policy drawn up, would like your existing policies reviewed or have any other questions about this topic then please don’t hesitate to get in touch with Jennifer Pinder, at firstname.lastname@example.org and 02920345525.