A nine-year legal battle over whether a company was right to fire an employee who carried out ‘a small harmless private conversation’ on a work social media ended at the European Court of Human Rights today. A Grand Chamber ruling found by a majority of 11 votes to six that the national authorities of Romania had not adequately protected the rights of a man dismissed for sending private messages over a Yahoo Messenger account he had created for his employees.
While the case, Bărbulescu v Romania, ruled on a state's positive obligations under Article 8 of the European Convention on Human Rights it was widely seen as a test of an employer's right to monitor employees' conversations. A chamber judgment by the court last December found that the employer's monitoring was 'reasonable in the context of disciplinary proceedings'.
However, the Grand Chamber judgment found that the Article 8 right of respect for private and family life and correspondence was applicable and that the Romanian national courts had failed to strike a fair balance between those rights and those of an employer to take measures in order to ensure the smooth running of the business. In particular, it found that the courts had not determined whether Bogdan Bărbulescu had been notified that his employer might introduce monitoring measures.
The judges ordered Romania to pay Bărbulescu's costs of €1,365 (£1,252) within three months.
In a joint dissenting opinion, six judges including the UK’s Tim Eicke disagreed that the domestic courts 'did not afford adequate protection of the applicant's right to respect for his private life and correspondence'.
Employment lawyers said the decision, although widely awaited, would have little effect on UK employers. Helena Milner-Smith, special counsel at international firm Covington, said: 'The decision serves as a reminder for employers who monitor workplace communications to ensure their monitoring practices do not go beyond what is necessary for a legitimate purpose, that employees normally receive prior notice of the monitoring, and that appropriate safeguards are in place to preserve privacy in spite of the monitoring. However, the Grand Chamber's ruling will have very little practical impact in the UK since these steps are already widely recognised as good practice by UK employers and reflect the requirements of existing privacy legislation.'
Jonathan Chamberlain, employment law expert at City firm Gowling WLG, said that the ruling leave employers confused as to how extensively they can monitor employee communications. 'The court itself seemed divided over how to balance employees' privacy and employers' security and it is still not clear what exactly constitutes proportionality and fair warning,' he said.