This case is key for employers in the EU because this is the first time that the Court has looked at the monitoring of an employee’s electronic communications by a private employer.
The background to this case is that on 12 January 2016, the ECHR – composed of seven judges – decided that Mr Bărbulescu’s right to privacy had not been violated when the employer monitored his correspondence, found private emails and chat messages and dismissed him as a result.
However, he contested this judgment and requested that the Grand Chamber of the ECHR – composed of 17 judges – reconsider the case. On 5 September 2017, the Grand Chamber came to a different judgment, namely that the employer’s e-monitoring was in fact a violation of the employee’s privacy.
Several weeks prior to Mr Bărbulescu’s dismissal, the employer had circulated among its employees a notice stating that an employee had been dismissed because, among other things, he had used the internet for private purposes. Based on this notice, the employer considered that it was clear that the internet was not to be used for private purposes.
The employer later examined Mr Bărbulescu’s communications and found to contain many private messages. He was confronted with this and subsequently dismissed for this reason.
The Grand Chamber found that the employer did not inform Mr Bărbulescu of the possibility of the monitoring beforehand, let alone of its purpose, nature and extent. It was particularly concerned that the employer might have had access to the actual content of his emails. The Grand Chamber set out some rules for employers (along the lines of the faults it found in what Mr Bărbulescu’s employer had done), to help ensure that if they do monitor employees’ communications, they do so fairly.
Moreover, the employer did not check whether there were other ways of monitoring employees that would have been less intrusive than looking at the contents of private correspondence.
The judgment will mean that e-monitoring will need to be done carefully by employers and they will need to take certain steps beforehand. Employees will need to be notified in advance as to why, how and to what extent their electronic communications will be checked on the job. In particular, they must be told whether the employer will just look at the ‘flow’ of communication or also the contents. Although employees’ rights to privacy can be limited, they cannot be completely excluded – but whatever monitoring is done must conform to the principles of legality and proportionality and must be done in a way that protects the employee against ‘arbitrariness’ by the employer.