European court ruling says employees entitled to privacy in the workplace

By Gillian Crotty

The European Court of Human Rights (ECHR) judgment in a case involving an employer who read private messages exchanged on an office account has said that employers "cannot reduce private social life in the workplace to zero".

The Romanian courts had rejected Bogdan Barbulescu's claim that his employers had failed to respect his right to a private life. He had been dismissed in 2007 after his employer had checked chat logs on his professional Yahoo Messenger account, including personal and private communications to his wife about his sexual health and messages to his brother. He had been asked by his employer to set up the account for work purposes and there was a ban on private use of such online accounts.

Barbulescu had told his employers that he had complied with the ban on private use of online work accounts, but when they went through the messages they discovered the private communications. In January the main ECHR court had found that his employer had acted reasonably as it had accessed the Yahoo Messenger account under the belief that all the information would be work related.

The higher chamber of the ECHR overturned that decision saying Barbulescu's employer failed to inform him in advance of the monitoring of the communications, and said that the Romanian courts had failed to protect his right to respect for his private life and correspondence. No compensation was awarded, with the court deciding that the decision itself was "sufficient just satisfaction."

The decision of the Strasbourg appeal court came as something of a surprise, and could have serious implications for employers and how they monitor internet use by their employees. The judgement said that there must be a fair balance between an employee's right to a private life and the employer's right to ensure work rules are being followed.

The ECHR grand chamber judgment said that an employer “cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.”

Employment law solicitors have already commented that the decision further confuses the boundaries between work and leisure time, which have become significantly blurred in recent years with the advances in technology and growth in social media use.

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