Recent human rights case in employment law

In the case Barbulescu v Romania, an Employer had asked an Employee to set up an email account for customer and business enquiries. The Employer had a rule in which all personal use of the Employer’s IT systems was “forbidden”. When the Employer found out that the Employee had used the account for personal emails to his girlfriend and brother during work time he invited the Employee to a disciplinary hearing alleged that he had breached their policy. The Employee’s response initially was that the account had only been used for business purposes, not private use. The Employer then went on to explain that they had read the emails and knew that this was incorrect.

 

The Employee claimed unfair dismissal arguing a breach of his human rights under Article 8 “Everyone has a right to respect for his private and family life, his home and his correspondence”. The European Court for Human Rights considered whether the right balance was had between the employer’s interests and respect of the employee’s private life. The court failed his claim because the infringement of such rights had been proportionate.

 

The question for Employers is whether they can now freely access personal emails of Employees at work. The cautious advice is that they cannot, but in certain circumstances may be able to do so. An Employer cannot check any private communications but once an Employee uses a work computer for personal emails the answer may well be different. From an Employers perspective the clue is to have a clear policy which is breached by the Employee, which may give rise to disciplinary action. Among other aspects, the policy should make clear that the Employer will monitor computer and telephone systems within the workplace and for Employees the advice would be to check work policies and become clear as to what is acceptable behaviour in the workplace.
Employment law is notoriously complex and fast changing. At WSP Solicitors we have wide-ranging experience, case expertise and tactical insight to help you understand and apply it. To discuss your personal circumstances please call 01453 847200.

 

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