On the 12th January 2016 in the case of Bărbulescu –v- Romania, the European Court of Human Rights “ECHR”) ruled that an employer in Romania did not breach the privacy rights of its employee when it monitored personal chats on a Yahoo Messenger account which he was required to use for work purposes.
In this case Mr. Barbulescu was an engineer who used his work Yahoo Messenger account to send and receive personal messages. This was in breach of the terms of his contract of employment and as a result he was dismissed.
Mr. Barbulescu challenged his dismissal in his own country and the Romanian Court upheld his dismissal and found in favour of his employer.
He went on to challenge the decision to terminate his employment on the ground that there was a breach of his privacy which was protected by Article 8 of the European Convention on Human Rights.
Article 8 is a right to respect for private and family life, the home and correspondence.
The European Court of Human Rights held that Article 8 was relevant but that the Romanian Court was entitled to accept that the evidence in the case was sufficient to justify the employer making their decision to dismiss.
The ECHR acknowledged the requirement for employers to be able to check that employees were carrying out their work during working hours.
How does this decision affect the Workforce in Ireland?
Ireland, although a signatory to the Convention, is not bound by the decisions of the ECHR.
However the likelihood is that this will be of persuasive influence in the minds of the Judiciary in future decisions and therefore the importance of this decision cannot be understated.
For employers it is an alarm bell to sound to ensure they have a well prepared policy in their place of work specifically dealing with internet usage/employee monitoring which employees are on notice of and that the policy is in place.
For employees who may have thought that their private communications were just that, “private”, take heed of this decision.
Although in Bărbulescu –v- Romania case the employee was using a company computer and not for example a personal smartphone to send personal messages while at work, it was in breach of company policy.
For now the use of purely personal mobile devices appears to be generally safe from employer scrutiny………..the question is for how long more?
By Marcella Sheehy, Solicitor.
