Employment Law Case Update: Barbulescu v Romania

Mr Barbulescu, a Romanian national, was employed by a heating company as an engineer in charge of sales. At the request of the company, he was asked to create a Yahoo Messenger account to deal with client enquiries. The company’s policies strictly prohibited any personal use of its IT equipment, including computers and internet access.

In July 2007 Mr Barbulescu was informed  that his Yahoo Messenger communications had been monitored over an eight day period, and it was believed he had used the Messenger  account for personal purposes , contradicting the company’s IT usage policy. Mr Barbulescu replied in writing that he had only used Yahoo Messenger for professional purposes. The company then presented Mr Barbulescu with a 45 page transcript from the week in question. It included communications with his brother and fiancée discussing personal information about his health and sex life.

Following his dismissal for breach of the company’s IT policy, Mr Barbulescu challenged the dismissal before the Romanian courts. The claim was unsuccessful after the court held that the company was entitled to check that work was being done properly. Mr Barbulescu had also been made aware both of the policy prohibiting personal use of company resources, and of the fact that surveillance would be undertaken.

Mr Barbulescu brought a claim against the Romanian Government in the European Court of Human Rights (ECtHR), that the court had failed to protect his right to privacy and correspondence under Article 8 of the European Convention of Human Rights. The Chamber of the ECtHR held that Article 8 was applicable to Mr Barbulescu’s case, but that there had been no violation. The decision was overturned in September 2017 by the Grand Chamber of the ECtHR. The Grand Chamber held that the domestic authorities should ensure that when an employer intends to monitor correspondence and other communications this is accompanied by “adequate and sufficient” safeguards against abuse. The Grand Chamber published a Q&A finding that the Romanian courts failed to address these issues and therefore awarded Mr Barbulescu non-pecuniary damages.

Employers in the UK are not directly bound by the Convention; however, employment tribunals hearing a similar matter in a domestic employment dispute are. This case highlights that it can be lawful to monitor employee’s communications but it needs to be done with caution in order to avoid an employee arguing that the nature and scope of the monitoring was unlawful.

This article is from our weekly Employment Law Newsletter published on 12/10/2017.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.