Maz Dannourah

Senior Associate

Employment and HR

Update: An employees right to privacy

Maz Dannourah

Misconceptions about an employee’s right to privacy in the workplace continue to exist and are often quoted long after the decision of European Court of Human Rights (“ECHR”) involving a Romanian employee and his employer’s monitoring of instant messages sent at work.

In Barbulescu –v- Romania the ECtHR,
in 2016, Mr Barbulescu claimed a breach of his right to privacy when his employer accessed “private” messages between Mr Barbulescu and his fiancée and brother which were sent whilst Mr Barbulescu was at work and using work equipment. 

Mr Barbulescu claimed the messages were private and as such the employer’s access and use of the messages (in dismissing Mr Barbulescu) breached his right to privacy.  The ECtHR acknowledged the right to privacy was engaged but found the employer had a legitimate basis to review the messages in relation to Mr Barbulescu’s alleged misuse of work equipment.

At the time, the ECtHR’s decision was hailed as being confirmation of an employer’s “right” to monitor employee’s communications.  However, the decision did not provide a green light for employers to snoop at will and set out warnings to employers as to when monitoring may be permitted.

Following an appeal by Mr Barbulescu of the HCtHR’s decision, the Grand Chamber of the ECtHR has determined that Mr Barbulescu’s right to privacy was breached by his employer.  The reversal of the HCtHR’s decision centred on the issue of the employer’s failure to warn Mr Barbulescu of its intention to monitor communications.

What now for employers?  The appeal decision in this case does not significantly alter the law in relation to monitoring of employees’ communications at work.  The key points for employers remains; employees should be told of any limitations on use of communications tools and to what extent the employer may monitor employees’ communications.  The question of reasonableness will also likely be significant particularly where dismissal is considered by the employer in relation to breaches of the employer’s rules or policies.

If you are interested in any of the topics raised in this article, please contact Maz. Alternatively, you can call to speak to a member of our team on 0115 9888 777.

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