The employee in question, Mr Bărbulescu, was tasked with setting up an instant messaging account in Yahoo Messenger to allow the company to handle customer complaints. B regularly used the account to message his fiancée and brother. The company’s IT policy expressly forbade employees from using its IT systems for personal purposes. When B’s misuse of the instant messaging account came to light, he was dismissed. He disputed the fairness of the dismissal, arguing that the company had breached his right to privacy by accessing and making use of his personal messages. The case made its way through the local courts and eventually ended up in the ECtHR.

Following the initial judgment of the ECtHR in January 2016, B appealed to the Grand Chamber of the ECtHR. His case was considered by 17 judges who overturned the earlier ruling. Their decision was based on a finding that the domestic courts had mishandled the hearing of B’s complaints and had therefore failed to protect his right to privacy.

The question for the ECtHR to decide was whether a fair balance had been struck between B’s right to respect for privacy and the employer’s right to monitor communications to ensure the smooth running of the company. The majority of the Grand Chamber decided that the domestic courts had (1) failed to establish the relevant facts and (2) failed to perform the requisite balancing exercise between B’s right to privacy and the employer’s interests.

In particular, the Grand Chamber noted that the domestic courts had failed to consider the following factors which were key to determining fairness:

The win was bittersweet for B as the ECtHR chose not to award him any compensation because it felt he had not suffered any monetary loss and the ruling that his right to privacy had been breached was sufficient reward for any non-monetary loss. The ECtHR permitted him to recover only part of his legal fees.

The case is of limited impact for the UK as we already have in place guidance on workplace monitoring for employers that largely reflects the Grand Chamber’s recommendations. Many of the principles in the Employment Practices Code, which was devised by the Information Commissioner’s Office, cover the same ground.

CASE Bărbulescu v Romania, European Court of Human Rights (Grand Chamber), 5 September 2017

Wrong, as an employee in Romania learnt to his detriment.

The employee in question, Mr Bărbulescu, was tasked with setting up an instant messaging account in Yahoo Messenger to allow the company to handle customer complaints. Mr B regularly used the account to message his fiancée and brother despite this being expressly forbidden by the company’s workplace policy. When Mr B’s misuse of the instant messaging account came to light, he was dismissed. Mr B disputed the fairness of the dismissal, arguing that the company had breached his right to privacy by accessing and making use of his personal messages. The case made its way through the local courts and eventually ended up in the European Court of Human Rights.

The Court decided that the employer acted fairly. It acknowledged there was a balance between an individual’s right to privacy and an employer’s right to ensure its IT systems were being used for professional purposes only. In Mr B’s case, a fair balance had been struck. The employer had accessed Mr B’s personal messages only so far as was necessary to establish that Mr B had been using its instant messaging account for his own personal ends.

The case is a warning to employees that they cannot blithely use their company’s email and instant messaging systems for personal reasons in the assumption that their right to privacy is preserved at all costs. If their employer has a policy that clearly says such use is forbidden and they have been made aware of this restriction, then privacy law will not protect their correspondence from their employer’s prying eyes.

CASE Bărbulescu v Romania, 12 January 2016

  Tax Increase the tax-free personal allowance to £12,500. Equal pay Introduce private sector equal pay reporting by requiring companies with more than 250 employees to publish the difference between the average pay of their male and female employees. Public sector termination payments Introduce new legislation to cap enhanced redundancy payments in the public sector at £95,000. Require repayment of public sector exit payments in certain circumstances. Long-term absence Reduce benefits of those suffering from long-term, treatable conditions if they refuse to follow treatment recommended for them. Volunteering Allow employees working in large companies (employers with more than 250 employees) or the public sector to receive three days’ paid volunteering leave. Pensions Introduce a single-tier pension system.

Photograph: “Houses of Parliament” /© Davoud D.

The Court gave its decision on four joined claims brought by British Christians.  The claimants complained that UK legislation had provided insufficient protection for their religious rights after they suffered religious discrimination at work.

The four applicants all claimed their employers had infringed their right to freedom of religion under Article 9 of the European Convention on Human Rights.

Only Ms Eweida was successful in her case.  The Court decided that her rights had been infringed because a fair balance had not been struck between her desire to show her religious belief through the wearing of a cross and the employer’s wish to project its corporate image.

But Ms Chaplin, Ms Ladele and Mr McFarlane were unsuccessful in their claims.

Ms Chaplin was a nurse who had breached the Department of Health’s policy that forbade the wearing of necklaces for safety reasons.  The Court decided that hospital managers were better placed to make decisions on safety than a court, therefore the employer’s intervention had been necessary.

For both Ms Ladele and Mr McFarlane, the Court recognised that a balance had to be struck between accommodating their religious beliefs and their employers’ legitimate aim of promoting equal opportunities.  The Court decided that the disciplinary action that had been taken against them was justified in pursuit of the employers’ objectives.

CASE Eweida and others v The United Kingdom, European Court of Human Rights, 15 January 2013

Photograph: © Council of Europe Credits