Monitoring of the use by an employee of a professional instant messaging service for personal purposes

Arendt & Medernach S.A. Published 13.10.2017

Court decision in Bărbulescu v. Romania

On 5 September 2017, the Grand Chamber of the European Court of Human Rights (the “ECHR”) examined for the first time the issue of the monitoring of electronic communications of an employee by a private employer, within the framework of an action brought by Mr Bărbulescu, an engineer employed by a private company in Romania. Mr Bărbulescu had been dismissed for using for personal purposes, in breach of the provisions of the internal regulations of the company, a professional Yahoo Messenger account created at his employer’s request for the purpose of responding to customers’ enquiries.
The decision handed down last month overturns a ruling made less than two years earlier in the same case. The ECHR had then held, by six votes to one, that the monitoring by the employer of the communications of Mr Bărbulescu had been reasonable in the context of disciplinary proceedings deeming that the domestic Romanian courts had struck an adequate balance between the employee’s right to respect for his private life and correspondence and the employer’s interests.

This decision in which the Grand Chamber has just held, by eleven votes to six, that there has been a violation of the applicant’s right to respect for his private life does not however constitute an absolute enshrinement of the right of employees to protection of their privacy to the detriment of the employer’s right to carry out monitoring. In reality, its impact on employers in Luxembourg will be limited (I). However, in the light of the facts of the decision (II), it is highly advisable that employers eager to implement a monitoring system to ensure that their employees spend their working time performing their professional duties, should make sure that they observe a particular time schedule as well as follow the methodology suggested by the Court (III).

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