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ECtHR rules in favour of Romanian employee who “had privacy breached” (6 October 2017)

Date: 06/10/2017
Duncan Lewis, Legal News Solicitors, ECtHR rules in favour of Romanian employee who “had privacy breached”

The European Court of Human Rights (ECtHR) has recently given a judgment in Barbulescu v. Romania that protects the privacy of employees when sending and receiving emails in the workplace.

A Romanian employee, BB, was sacked in 2007 by his firm when it was discovered he had discussed his sexual health with his fiancée and brother via a professional email account. Such private use of workplace emails accounts was banned by the firm but BB claimed to have been abiding by the rules prior to having his emails checked.

When he was fired, BB took his claim to the Romanian courts and then to the ECtHR. He argued that his messages should have been protected by the right to respect for private life under Article 8 of the European Convention on Human Rights (ECHR). His employer was found to have acted reasonably by the ECtHR. However, on appeal to the Court’s Grand Chamber, the judges by an 11 to 6 majority in his favour overturned the decision. The Grand Chamber found that a fair balance had not been struck between BB’s right to respect for private life and his employer’s right to ensure employees were abiding by office rules. However, the Court added that an employer could not be expected to “reduce social life in the workplace to zero”. No compensation was awarded by the ECtHR to BB, with the ruling considered “sufficient just satisfaction”.

It used to be the case that employees were not entitled to expect their affairs to remain private when using employers’ communication systems. Whilst employers are entitled to expect their systems to be used for business purposes, there is recognition that limited private use is necessary in the workplace. This decision also means that employers will have to be more specific in their instructions to staff about use of their systems and if they intend to monitor such usage.

Anthony Thompson, the author, is a Director in the Employment department at Duncan Lewis Solicitors. With over 20 years’ experience, Anthony has advised and supported businesses and individuals on all aspects of the working relationship, including both contentious and non-contentious matters. He is also an advocate, having achieved notable successes representing clients in employment tribunals, and has negotiated significant settlements at private and judicial mediations.

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