Is Privacy in the Workplace Over?

In January 2016 the European Court of Human Rights (ECHR) delivered a judgment in Bărbulescu v. Romania regarding a Romanian employer’s rights to access an employee’s private communications. The court determined that the employer had acted lawfully when it monitored an employee’s email account, supporting the decision of the Romanian civil court to dismiss the employee’s appeal in earlier years. However, in a recent turn of events, an appeal was made from the Chamber of the ECHR to the Grand Chamber; and on September 5, 2017, the decision was reversed. This is highly unusual, and the Grand Chamber came down more in favor of the employee’s right to privacy.

Facts of the Case

Bărbulescu was a sales engineer working for a private company in Romania. His employer had a strict policy of prohibiting the use of its equipment (including the Internet) for personal use. His employer asked him to set up an email account, specifically to reply to client queries. Bărbulescu went on to use this account for personal communications, such as exchanging emails with his fiancée and brother. His employer subsequently confronted him about his conduct and told him that it had been monitoring his account and that it knew he had been using it for personal communications. He denied the allegations, but his employer presented him with a transcript of his messages and discharged him.

Bărbulescu challenged his dismissal in the domestic courts, alleging that it breached his right to a private life. The claims were dismissed and he brought his claim to Strasbourg and the ECHR. The Chamber of the ECHR dismissed his claim, but he appealed to the Grand Chamber.

The Grand Chamber and its Decision

The Grand Chamber found that the Romanian courts had failed to find out whether Bărbulescu had been notified prior to setting up the email account that his communications may be monitored. The Romanian court did not address the fact that his employer had not informed Bărbulescu about the possible extent of the monitoring, or that his employer might have access to the actual contents of the messages. The national courts failed to determine the specific reasons for the employer to justify the introduction of the monitoring of his messages, whether there were less intrusive ways of monitoring the correspondence, and finally whether the communications may have been accessed without Bărbulescu’s knowledge.

The Grand Chamber decided that the Romanian court’s decision was wrong and that Romanian law had to strike a fair balance between the employer’s and employee’s interests. Overall, they decided that there had been a breach of Bărbulescu’s right to respect for his private life under Article 8 of the ECHR and that he was entitled to compensation.

Likely Impact on Your Organization

This was a complicated judgment; however, the ultimate point to note is that employees have a right to respect for privacy in the workplace. If an employer intends to monitor an employee’s correspondence, the employer should (exceptional circumstances aside) tell the employee of its intentions. In this case, although the employee knew that it was forbidden to use work computers for personal purposes, he had not been informed that his communications were being monitored. This could be a good time to review your IT policies and monitoring practices and ensure that all employees are aware of what those policies are.

Written by Daniella McGuigan of Ogletree Deakins