The European Court of Human Rights recently ruled in favour of an employee who had been dismissed for sending private messages from his professional Yahoo! Messenger account to his fiancée and brother.
The Case of Barbulescu v Romania centres on the issue of employee’s being monitored at work.
The background is that Barbulescu was employed in sales and was asked to set up a Yahoo Messenger account to answer clients’ enquiries. He had been warned not to use it for private matters but was found to have been using the account to exchange private messages with his brother and his fiancée.
Three years after the account was set up, the company told Barbulescu that his account had been monitored and that the non-business messages had been discovered. He was presented with transcripts of his communications.
He was sacked and he appealed on the basis that he had a right to respect for private and family life, as set out in Article 8 of the Human Rights Act 1998. However, the Romanian Courts found against his claim.
He then took his case to the European Court of Human Rights in Strasbourg, where his claim was again dismissed. The judges found that there had been no violation of his rights and his employer had acted reasonably.
Barbulescu appealed again to the European Court of Human Rights’ Grand Chamber and there was a further hearing last November. (Please note that UK judges are required to take the European Court of Human Rights’ rulings into account but they are not bound by them and they do not create law.)
European Court of Human Rights Decision
On 5 September 2017, the European Court of Human Rights made their decision in relation to the now long-running case of Barbulescu v Romania.
It overruled the previous decision made in January 2016 which originally ruled in favour of the employer, where it was found there was no violation of the Human Rights Convention.
This time the European Court of Human Rights ruled that Romanian judges in their original decision had failed to protect Barbulescu’s right to a private life and correspondence, as set out in Article 8 of the European Convention on Human Rights, which guarantees respect for private and family life.
The Law in the UK
In the UK, there are two sets of regulations that govern the way in which employees’ telecommunications can be monitored at work.
Firstly, the Regulation of Investigatory Powers Act 2000 (RIPA) prohibits the intentional interception of any type of electronic communication (without lawful authority) in the course of its transmission by way of a public or private telecommunications system.
Lawful authority can be gained either:
- By consent (implied or express), or
- Under regulations which authorise businesses to intercept on their own systems without consent for certain purposes.
These regulations allow businesses to monitor (and in some cases record) communications on their telecommunications and email systems, without the users' consent.
However, this can only be carried out for specified authorised purposes, and the employer must take reasonable steps to inform users of their systems that monitoring may take place. This would usually satisfy the requirement to inform, provided employees are sufficiently aware of the policy.
Secondly, the Data Protection Act 1998 governs the processing of personal data in the UK. It requires the data controller to comply with eight principles, but does not prevent employers from monitoring employees.
However, it does impose obligations on employers to inform individuals that their data is being monitored, it is processed securely and the data gathered is not excessive or disproportionate.
Breach of Human Rights Claims
The Courts approach the breach of human rights claims by conducting a balancing exercise between the employers’ rights and employees – i.e. whether an employee’s human right to privacy outweighs the employer’s legitimate need to monitor an employee’s work emails.
An employer can justify that there is a legitimate reason to monitor an employee’s work emails by stating they need to do so to ensure they are complying with the law and their obligations.
However, as the case of Barbulescu v Romania shows, an employee can be successful in arguing that their human rights have been breached.