ECHR court reverses ruling on sacking over Personal messages
By Zoe Kleinman
Technology reporter, BBC News
5 September 2017
In the Department Tech
The European Court of Human Rights is in Strasbourg
For sending private messages at work, A Romanian man should not have been fired, Europe’s top human rights court has ruled.
Bogdan Mihai Barbulescu was sacked for sending the messages via the Yahoo messaging system in 2007.
His employer had used surveillance software to monitor his computer action.
A Romanian court ruled in 2016 that the firm had been within its rights but this has now been overturned.
The decision was successfully contested by Mr Barbulescu.
Some of the communications that he had sent were “intimate in character” and were sent to his brother and his fiancee, the court heard.
However, his right to privacy hadn’t been “adequately protected”, the apex body of the European Court of Human Rights (ECHR) has now ruled.
The ECHR also said it was not clear whether Mr Barbulescu had been warned that his communications would be monitored, why the observation had taken place and that the first court hadn’t established.
As it is the highest court there may be no appeal.
“…although it was questionable whether Mr Barbulescu might have had a reasonable expectation of privacy in view of his employer’s restrictive regulations on internet usage, of which he had been advised, an employer’s instructions could not reduce private social life in the office to zero,” said the court in its decision.
In a question and answer section on its site, the ECHR says the ruling doesn’t mean that firms cannot now monitor employee communications at work, and that they could still dismiss employees for private use.
“However, the Court believes that States should ensure that, when an employer takes steps to track employees’ communications, these steps are accompanied by adequate and adequate safeguards against abuse,” it said.
Catrina Smith, employment partner at the legal firm Norton Rose said it wouldn’t have a huge impact on UK employment regulation.
“What it will do, for companies who thought they had a bit more leeway than they did, is confirm the fact that they don’t,” she said.
“It will hopefully remind employers that they need to consider these issues and be very clear with employees about what is and isn’t permissible.
“Employees should also be smarter about the way in which they utilize both personal and work devices.”
Ms Smith added that in the united kingdom the Data Protection Act and the Interception of Communications Act set guidelines seeing what they can monitor, for employers out.
“You need to make sure that the employee understands that [tracking] might happen and you’ve got to have a great reason for doing this,” she said.
“It’s all about having a dialogue and having an agreement about what is and isn’t personal.”
There has to be clear guidelines about the use of personal devices for work purposes, ” she added.
“In the old days if you took papers home, they still belonged to the employer,” she said.
“You need to have clear comprehension of the quantity of ownership an employer has over information held on a computer”