Alan McCormack | Senior Associate

Employee Monitoring and Human Rights

The European Court of Human Rights has recently given its judgment in a long-running case concerning the decision of a company to dismiss an employee after monitoring his electronic communications and accessing their contents, and whether this was a breach of his human rights with regard to privacy.

Facts of the Case

The case concerned a Romanian, Bogdan Barbulescu, who started working for a private company as an engineer in charge of sales in August 2004. At his employers’ request, he created an email account for the purpose of responding to clients’ enquiries.

In July 2007 Mr Barbulescu was informed that his usage of the account had been monitored and there was evidence he had used it for personal purposes. In August, his employment was terminated for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.

Dismissal Held to be Fair

Mr Barbulescu challenged this in court, complaining that the decision to terminate his contract was null and void as his employer had violated his right to correspondence in accessing his communications.

His complaint was dismissed by the court on the grounds that the employer had complied with the dismissal proceedings provided for by the country’s Labour Code;

  • that employers were entitled to set rules for the use of the internet, which was a tool made available to employees for professional use;
  • and that Mr Barbulescu had been duly informed of the company’s regulations.

Mr Barbulescu appealed, but the appeal court upheld the earlier ruling.

Monitoring was a Violation of Human Rights

The case eventually reached the European Court of Human Rights, which has now ruled that there had been a violation of Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights.

The Court concluded that the national authorities had not adequately protected Mr Barbulescu’s right to respect for his private life and correspondence. They had consequently failed to strike a fair balance between the interests at stake.

In particular, the national courts had failed to determine whether Mr Barbulescu had received prior notice from his employer of the possibility that his communications might be monitored; nor had they taken into account the fact that he had not been informed of the nature or the extent of the monitoring, or the degree of intrusion into his private life and correspondence.

In addition, the national courts had failed to determine:

  • the specific reasons justifying the introduction of the monitoring measures;
  • whether the employer could have used measures that were less intrusive into Mr Barbulescu’s private life and correspondence;
  • whether the communications might have been accessed without his knowledge.

The European Trade Union Confederation (ETUC), which had intervened in support of the case because of its broader privacy and employment implications for workers, welcomed the judgment.

“The key message for member states is that they need to have in place sufficient rules to ensure that employers respect the right to privacy of their workers,” commented Esther Lynch, ETUC Confederal Secretary. “It is clear from this ruling that workers do not leave their human rights at the doorstep of the workplace, and employers cannot have overly invasive surveillance their workforce.”

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Alan McCormack

Alan McCormack

Employment Law Team

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