There was much excitement this month about Bărbulescu v Romania, a decision of the European Court of Human Rights (ECHR). Those readers who also delve into the Metro morning newspaper, may have noticed the barrage of letters to the editor following the case. According to Matt from Essex, “employers can do whatever they like to make excuses in getting rid of staff …”. Rodney, also from Essex, added: “An appalling ruling that will allow snooping by bosses, which will be abused”. At the somewhat more restrained end of the spectrum, Simon from Bristol argued that “bosses have the right to know what staff do at work, especially when using a company device. It’s hardly a ‘private’ message when sent from a company phone”.
So what, exactly, has the European court said and does it actually change the UK’s existing law?
In the case, the employee (Mr Bărbulescu) was asked to install Yahoo Messenger at work, for his employer’s business. His employer had a policy of banning all personal use of company systems (including IT systems). Whilst this may seem draconian by UK standards, it is not uncommon in some continental EU countries, and in this case was certainly within the discretion of the employer.
Contrary to his employer’s policy, Mr Bărbulescu used Yahoo Messenger for sending personal messages, including messages to his brother and to his girlfriend about his health and sex life. His employer became aware of this because it monitored his use of the Yahoo Messenger account over a period of a week or so. Mr Bărbulescu’s employer confronted him about his personal use of the account and he denied it. To prove its case, his employer then looked at his instant messages in detail and provided him with a lengthy transcript of his personal correspondence. Mr Bărbulescu was then dismissed. He was outraged and claimed unfair dismissal (or the Romanian equivalent) and argued that his employer had no right to check his instant messages because they were private (even if they were sent on a work system). The Romanian courts found in favour of the employer and Mr Bărbulescu appealed to the ECHR.
The ECHR backed the Romanian courts, and also found in favour of the employer.
The most interesting aspect of the ECHR judgment for UK HR managers is not what the court said, but rather what the court didn’t say. Importantly, it didn’t say that employees have an inviolable right to send private communications using a work system, which the employer can never look at. What it said was this: where an employer has a clear policy in place, and has a reasonable basis to check employee communications (such as checking that they are not misusing company resources during work time), and does so proportionately to the issue at hand (in this case, only looking at the content of the messages when it had to, to prove Mr Bărbulescu was lieing), then the employee cannot complain.
Sound familiar? It should do. The decision is entirely consistent with the way UK law currently works on this matter and with guidance issued by the Information Commissioner – and after this judgment, we can now add that it is consistent with expectations of the ECHR, as well.
So nothing new, really, but everyone still loves a bit of drama in the letters section of the morning paper!