In Barbulescu v Romania, the European Court of Human Rights has held that there was no violation of an employee’s right under Article 8 of the European Convention on Human Rights (the right to respect for private and family life, the home and correspondence) in circumstances where an employee had been dismissed for using the company’s internet for personal purposes during working hours. While the employee’s Article 8 right had been engaged, the employer’s monitoring of his communications pursuant to workplace rules and regulations had been reasonable in the context of disciplinary proceedings, and the Romanian courts had acted appropriately in balancing the employee’s rights against the interests of his employer.

B, a Romanian national, was employed by a private company as an engineer in charge of sales. At his employer’s request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries. On 13 July 2007 the employer informed B that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed that he had used the internet for personal purposes, contrary to internal regulations. When B denied this, he was presented with a transcript of messages he had exchanged with, among others, his fiancĂ©e and his brother, some of which related to personal matters such as his health and sex life. B’s employment was terminated on 1 August 2007 for breach of the company’s regulations.

B contended that his employer had violated his right to correspondence protected by the Romanian Constitution and had breached the Criminal Code. The Romanian County Court dismissed his complaint on the grounds that his employer had complied with the Labour Code provisions on disciplinary proceedings and that B had been duly informed of the employer’s regulations prohibiting use of company resources for personal purposes. Following an unsuccessful appeal, B applied to the European Court of Human Rights contending that the employer’s conduct had disproportionately infringed his Article 8 rights.

The Court accepted that Article 8 was engaged on the facts of the case, the employer having accessed B’s Messenger account and used the transcripts of his communications as evidence in the domestic litigation. However, it held – by a majority – that there had been no violation of Article 8. It stated that although the purpose of Article 8 is essentially to protect an individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference. The Court had to examine whether Romania, in the context of its positive obligations under Article 8, had struck a fair balance between B’s right to respect for his private life and correspondence and his employer’s interests. In the Court’s view, it was not unreasonable for B’s employer to seek to verify that employees were completing their professional tasks during working hours. Furthermore, B’s employer had accessed his messaging account in the belief that it contained client-related communications only. B had been able to raise his arguments relating to the alleged breach of his Article 8 right before the domestic courts, which had duly examined his arguments and found that his employer had acted in accordance with the Romanian Labour Code’s provisions on disciplinary proceedings. B’s disciplinary breach – namely, his use of company resources for personal purposes – had been established, and it was clear from the domestic court judgments that they had used the transcript of B’s communications only to the extent that it proved that breach. The ECHR accordingly concluded that the domestic courts had struck a fair balance between B’s rights under Article 8 and the interests of the employer.

The lesson to be learned here is that Employers in England and Wales can dismiss for breach of their own internal internet procedures after taking disciplinary action against an employee for private communications where it finds that there has been a breach of its procedures. It may be difficult for an employee to win a claim for unfair dismissal in such circumstances.

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