A company was wrong to fire an employee for sending private messages on work social media, the European Court of Human Rights has ruled in a test case on workplace privacy.
The Grand Chamber of the Court found by a majority of 11-6, in Barbulescu v Romania 61496/08, that the Romanian authorities had failed to adequately protect the employee’s Art 8 right of respect for private life and failed to strike a fair balance between those rights and those of an employer to run their business.
James Froud, employment law partner at Bird & Bird, said: ‘This judgment doesn’t mean employers cannot monitor their employees’ use of the internet, or that employees can no longer be dismissed for personal use of the internet at work, but in future, employers must take certain steps when assessing whether a measure to monitor is proportionate to the aim pursued, and whether the employee is protected against arbitrariness.
‘They should, for example, notify the employee that they may be monitored, provide legitimate reasons for doing so, and provide them with enough notice and safeguards if the monitoring is to be intrusive.’
Froud said the UK courts had, to date, ‘shown little sympathy to employees, recognising that it is very much a qualified right which can be superseded where protecting an individual’s privacy may infringe the rights of others.
‘In truth, these cases will always turn on the specific facts and therefore the decision is unlikely to result in a fundamental change in legal position—but we may see a shift in emphasis, with courts requiring employers to clearly demonstrate the steps they have taken to address the issue of privacy in the workplace.’
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