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