The European Court of Human Rights has ruled in favour of a Romanian engineer, Bogdan Barbulescu, who lost his job over 10 years ago when emailing private messages on his workplace Yahoo Messenger account. Mr Barbulescu had sent messages to his brother and fiancee. The court found that the monitoring infringed his right to privacy. The judgment acknowledged that employers had legitimate reasons for monitoring employees' accounts and gave guidance to companies emphasising that it had to be proportionate to achieve the aim. The court said Mr Barbulescu should have been told in advance that messages on the account were being recorded.
Separation not possible
Commenting on the decision Baker McKenzie London partner Harry Small says: 'Separating work and home life, in the digitally transforming age, is no longer really possible. This decision reflects that reality. So just as we expect people to respond to work and work's customers' demands outside "working hours"… so we need to allow flexibility to deal with personal matters within working hours.This means the use of employers' systems, to some extent, for personal matters. So if personal matters are going to be monitored, like in this case, there needs to be a clear reason and the employee needs to be told about it.'
He says that otherwise, the right to a personal and family life, which the employee does not lose when they go to work, is breached. Employers must be transparent about monitoring and not monitor unless there is a good reason. They also cannot assume that they can monitor without a good reason as staff have a right to their personal and family life and the secrecy of their correspondence.