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MONITORING EMPLOYEE COMMUNICATIONS

12/09/2017

On 12th January 2016 The European Court of Human Rights (Fourth Section) heard the case of Barbulescu v Romania whereby a Romanian national, Mr Barbulescu, alleged that his employer's decision to terminate his contract had been based on a breach of his right to respect for his private life and correspondence and that the domestic courts had failed to protect his right; he relied on Article 8 of the Convention, which reads as follows:

"1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Mr Barbulescu had been using his business Yahoo messenger account to send and receive personal messages with his fiancée and his brother, which included messages about his health and sex life.  His employer dismissed him, upon accidentally coming across this information, and the European Court of Human Rights found that the Romanian employer had acted lawfully when it monitored Mr Barbulescu Yahoo messenger account.

Mr Barbulescu appealed to the Grand Chamber of the European Court of Human Rights and on 5th September 2017 they reversed the decision and found in favour of the right to privacy.  They concluded that there was a breach of Article 8 and the employee was entitled to compensation.

Although Mr Barbulescu was aware that he was not allowed to use work computers for personal purposes, he had not been told that his employer was monitoring his communications.

As a result of this case employers need to ensure that if they are going to monitor emails and messages of their employees that they tell their employees that their communications might be monitored.

If you currently are monitoring, or are likely to monitor communications of your employees and would like any advice in relation to how this is best communicated to your employees, then please call Practical HR on 01702 216573 or email fiona@practical-hr.co.uk


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