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Barbulescu v Romania: Case Update - Can Employers Monitor Employees Emails?

Posted on October 2nd 2017 by

Can Employers Monitor Employees Emails?

In the case of Barbulescu v Romania the Romanian Court ruled that an employer had acted lawfully when it monitored an employee’s Yahoo Account. The account in question was a Yahoo Messenger account, which the employee was encouraged to use to speak to customers. The employer found, however, that the account was also being used for personal purposes – namely messaging his brother and partner. Mr Barbulescu was subsequently dismissed from his role.  The Court upheld the decision of the employer to dismiss him, both at first instance and in the Romanian Court of Appeal.

The case then went to the European Court of Human Rights last year. Here it was established that the employers monitoring was sufficiently limited in scope and proportionate in nature, with the Court stating it was: 

"not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours".

 

Therefore, the appeal was once again dismissed as it was found that a proper balance had been struck between investigating the matter and protecting Mr Barbulescu’s rights.  

However, on Tuesday 5 September, the European Court of Human Rights (Grand Chamber) gave their decision. Ultimately, the Judges ruled by 11 to 6 that the original Judgment given by the Romanian Court had failed to protect Mr Barbulescu’s rights under Article 8 of the European Convention of Human Rights (which guarantees respect for privacy, family life and private correspondence). This qualified the initial ruling given by the Romanian Court, and the Judges established that employers were able to monitor workers emails, provided the employee is informed of this. The employee must also be made aware of any potential consequences for using their email for personal reasons, making reference to the employer’s specific policy against such use.

The Judgment means that employers must ensure they take steps to give clarity in relation to monitoring their workforce’s emails, clearly informing employees of any internal policies on the use of technology at work for personal reasons. If you want advice or need a review of your company’s policies, please contact our Employment Team who will be able to provide you with expert advice in this area. 

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