EMPLOYMENT AND PENSIONS E-BULLETIN

CASE LAW

Bărbulescu v. Romania(application 61496/08) [2016]

The account was set up to communicate with professional clients for work purposes. Despite the employer imposing an absolute ban on employee's using IT resources for personal matters in the contract of employment (of which the employee was aware) the employee used the account for personal communication. The employee was sacked in 2007 after the employer presented him with a 45-page transcript of personal messages which were communicated during work hours. In its ruling, the ECHR held that it was not improper of the employer to have accessed the Yahoo messages as they did so on the assumption that they were work-related. 

Although the decision sets a precedent for the UK and all other countries that have ratified the European Convention on Human Rights to follow it should be considered with caution. The ruling is not a 'green light' for employers to carry out unregulated snooping of private messages or other documents on an employee's computer for any reason. Here the employer’s actions were justified as they wanted to find out whether the employee was sending personal messages during work time in breach of a clear policy. However, it involves a delicate balancing exercise between the employee’s and the employer’s rights. The decision also does not overrule existing ECHR case law on the reasonable expectation of privacy or UK legislation i.e. the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, both of which limit an employers' right to monitor their employees' private communications.

Tags: Employment and Pensions