The extent to which employers can monitor their employees’ office emails could be shaped by a test case on workplace privacy to be resolved by the European court of human rights this week.



The final ruling in a long-running appeal brought by a Romanian man against his dismissal revolves around whether it was reasonable for his firm to investigate whether he had been sending private messages on his professional Yahoo Messenger account.

The case brought by Bogdan Bărbulescu dates back to 2007 when he was employed in sales and was asked to set up an email account to answer clients’ inquiries.

Three years later, the company informed him that his use of the account had been monitored and that he had been found to have used it to exchange private messages with his brother and fiancee. Some of the exchanges related to their sexual health.

Bărbulescu, who had been warned not to use the account for private matters, denied the claim but was presented with transcripts of his personal communications.

The court’s initial ruling was widely misreported as creating a right for employers to spy on their staff’s activities at work.

The Strasbourg-based ECHR cannot establish new laws, but its decision could nonetheless form a significant legal precedent about when and how far monitoring is permissible.

As the ease of modern communications blurs boundaries between work and free time, the way in which people balance work/life commitments – answering office emails at home and responding to private emails while at work – is becoming more problematic for both employers and staff.

Bărbulescu was sacked and appealed, at first through domestic Romanian courts and then to Strasbourg. He claimed that the privacy of his emails should have been protected by article 8 of the European convention on human rights, which guarantees respect for private and family life and correspondence.

The Romanian courts found against him and last year judges in Strasbourg dismissed his claim by a majority of six to one. The ECHR judges accepted that the case did raise the issue of his privacy but decided that the firm had acted reasonably in monitoring his emails in the context of disciplinary proceedings. They found that there had been no violation of his rights.

Bărbulescu appealed again to the ECHR’s grand chamber and there was a further hearing last November. The upper court will deliver its verdict on Tuesday.

The final judgment will be closely examined by privacy campaigners and lawyers. Both the French government and the European Trade Union Confederation have intervened in the case because of its broader privacy and employment implications.

There are already other precedents in European human rights law, based on the British case known as Copland, establishing that there is a right to privacy in the workplace and that surveillance by employers can be intrusive and illegal.