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The European Court of Human Rights ('the ECHR') has held that an employer's monitoring of their employee's communications at work was not a violation of the employee's right to respect for private and family life.
In the case of Barbulescu v Romania, Bogdan Barbulescu, a Romanian national, was employed as an engineer in charge of sales. At his employer's request he created a Yahoo Messenger account with which to respond to client enquiries. On 13 July 2997, his employer informed him that his Yahoo Messenger communications had been monitored and he was provided with a transcript which showed that, contrary to internal regulations, he had been exchanging messages with family members relating to personal mattes including his health and sex life. He was subsequently dismissed for breach of the company's regulations on 1 August 2007.
He initially brought an action in the Romanian county court claiming that his employer had violated his right to correspondence, which was protected by the Romanian Constitution. This claim was dismissed on the finding that Barbulescu had been informed of the internal rules prohibiting the personal use of the internet at work.
When his appeal was rejected, Barbulescu applied to the ECHR, alleging that his right to respect for private and family life had not been protected.
Whilst the ECHR found that his right to respect for private and family life was engaged in this case, it held that there was no violation of this right. The ECHR held that it was not unreasonable for the employer to seek to monitor that an employee was carrying out their assigned tasks during working hours. In this case, the employer had accessed Barbulescu's account on the assumption that it contained solely work-related messages.
In the ECHR's view, the transcript of Barbulescu's communications had been used in proceedings only insofar as necessary to prove his disciplinary breach. The domestic courts had examined his arguments and found that his employer had acted in accordance with the Romanian Labour Code. It therefore concluded that a fair balance had been struck between Barbulescu's right to respect for his private life and correspondence and his employer's interests.
This case has received widespread media coverage; however, it should be read with caution, as it does not overturn previous ECHR case-law in relation to an employee's reasonable expectation of privacy. Similarly, it does not override the existing limitations in place on the monitoring of employees' private communications contained within the Data Protection Act 1998 and other related UK legislation.
Employers should ensure that they have clear IT acceptable use and data protection policies. Employees should also be made expressly aware that their internet use may be monitored together with the business need the employer is seeking to achieve through monitoring. VWV would be happy to assist with an audit of your existing policies to ensure they are consistent with the latest developments in this area of the law.