An interesting case came before the the European Court of Human Rights in September, 2017. The case was the Barbulescu case and concerns the extent to which employees are entitled to privacy in the workplace.
Mr. Barbulescu was a Romanian engineer. His employer asked him to set up an instant messaging account for work purposes. However, Mr. Barbulescu used it for personal reasons, too, and contacted his fiancée and brother regularly.
The employer monitored his message activity and, ultimately, dismissed him on the grounds of using company resources for personal purposes. Barbulescu felt this was a breach of his privacy rights in contravention of the European Convention on Human Rights.
The employee exhausted his claim in his domestic courts and the case eventually came before the European Court of Human Rights.
European Court of Human Rights Judgment
The European Court of Human Rights (ECtHR) recognised the difficulty in balancing the rights of the employee to privacy in accordance with the European Convention on Human Rights and the employer’s right to safeguard its legitimate interests. In this case it involved relying on the messaging records to prove a breach of the company’s internal regulations and policies, a disciplinary issue.
The Chamber of the ECtHR decided that the Romanian courts had struck a fair balance between these competing rights and held in favour of the employer insofar as it was reasonable for the employer to be able to rely on the employee’s assurance that the messaging service was only being used for professional purposes.
Appeal to Grand Chamber of the European Court of Human Rights (ECtHR)
Barbulescu appealed this decision to the Grand Chamber of the European Court of Human Rights (ECtHR). It overturned the Chamber’s decision and held that in deciding between the competing rights of the employee and employer vis a vis privacy of the employee and legitimate interests of the employer to monitor communications in the workplace the following factors need to be considered:
- Was the employee put on prior notice of the monitoring activity?
- Regard must be had to the depth and breadth of monitoring; ascertaining how much personal communication is one thing, reading personal messages a different matter
- Had the employer legitimate reasons for monitoring the communications?
- Was there a less intrusive method of achieving the same result?
- What are the consequences and impact of the monitoring?
Employers-what to do now
Review your existing policies on monitoring employees’ communications. The monitoring policy should not be unrestricted and should be explained to employees.
This explanation should include the type and scope of monitoring which is being carried out, why the monitoring is necessary, the consequences of the data gathering, for example will it be used in disciplinary proceedings leading to dismissal.
This European Court of Human Rights (ECHR) decision is not binding on Irish Courts or the WRC or Labour Court, but will almost certainly have strong persuasive impact.
Here’s the full decision in Barbulescu v Romania, from the Grand Chamber of the European Court of Human Rights (ECtHR).