Back in January 2016 Sarah Thompson reported on the European Court of Human Rights (ECHR) which ruled in favour of an employer who had terminated an employee’s employment, after investigating his misuse of a company email account.

Earlier this week, the Grand Chamber of the ECHR overturned that ruling, finding that the Romanian employee’s right to privacy had in fact been infringed by his employer, when his personal messages were read in the course of an investigation, even though they were sent using company equipment and during working hours. The decision of the Grand Chamber represents the final decision of European courts on this issue, as it is the highest court of appeal and this judgment is therefore conclusive. As a result, Mr. Barbulescu is now entitled to compensation, although as can be seen from the decision, the court determined the amounts to be relatively low.

Employers should already be aware that employees have a certain right to privacy at work and must be properly informed if their communications are to be monitored and in what, if any, limited circumstances such monitoring may be conducted, always bearing in mind the need to balance employee rights and legitimate business interests.

The ECHR Grand Chamber’s decision considers this in detail, and although the judgment is lengthy, the key points benefit from the further clarification given by the court’s Q&A on the judgment. This helpful summary points out that Mr. Barbulescu’s right to private life and correspondence (protected by Article 8 of the European Convention on Human Rights) was violated by his employer because his employer failed to strike the necessary fair balance between each party’s rights and the Romanian courts had failed to determine whether he had properly been informed that his communications could be monitored.

The Q&A also states that this decision “does not mean that employers cannot, under any circumstances, monitor employees’ communications when they suspect them of using the internet at work for private purposes. However, the Court considers that States should ensure that, when an employer takes measures to monitor employee’s communications, these measures are accompanied by adequate and sufficient safeguards against abuse.”