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EMPLOYERS UPDATE: DEVELOPMENTS IN EMPLOYMENT LAW OCTOBER 2017

For the most part, my newsletter in January 2016 was devoted to a single case that had been heard before the European Court of Human Rights (ECHR): Barbulescu v Romania.  You can read the January 2016 newsletter here.

Mr Barbulescu had been dismissed when it came to light that, in breach of a specific rule, he had used, for his own personal correspondence, a Yahoo messenger account that the employer had required him to set up for work purposes.

The employer's internal regulations had said:

"any disturbance of order and discipline on company premises shall be strictly forbidden, in particular… Personal use of computers, photo copiers, telephones or telex or fax machines."

The employer's head office subsequently prepared a warning note to its staff.  This note was distributed to Mr Barbelescu’s office on 26th June 2007 and it seems that he read it sometime between 3rd and 13th July 2017. Part of the note read

"Time spent in the company must be quality time for everyone!  Come to work to deal with company and professional matters, and not your own personal problems!  Don't spend your time using the Internet, the phone or the fax machine for matters unconnected to work or your duties… The employer has a duty to supervise and monitor employees’ work and to take punitive measures against anyone at fault!

“Your misconduct will be carefully monitored and punished!"

It went on to refer to a staff member, Ms BA, who had been dismissed for

"…repeated [disciplinary] offences vis-a-vis her superior, [as well as] her private use of the Internet, the telephone and the photo copier, her negligence and her failure to perform her duties… Take a lesson from her bad example!  Don't make the same mistakes!"

The employer duly monitored Mr Barbulescu’s Yahoo account which he had set up specifically for business purposes.  It also looked at his personal Yahoo account.

He was subsequently summoned to explain himself and at one point the employer showed him 45 pages of the correspondence that it had found in the business Yahoo account.

Despite the fact that Mr Barbulescu informed the employer that, in his view, it had committed a criminal offence by breaching the secrecy of his correspondence, on 1st August 2007, he was dismissed.

As I mentioned in my earlier newsletter, Mr Barbulescu took the employer to the Bucharest County Court.  He lost.  He appealed to the Bucharest Court of Appeal and lost again.  He then took his case to the ECHR and in January 2016 a Chamber of the Fourth Section of the Court found against him, by six votes to one.

Being a mere employment lawyer, with no direct or detailed experience of the ECHR, I assumed that that would be the end of the matter.  Not so.

Apparently an applicant can have the matter referred to the ECHR's Grand Chamber and so it was in this case.  The hearing took place on 13th November 2016, before a Court comprising 17 judges from all over Europe.  As the 56 page Judgment indicates, after the hearing in November 2016, there were deliberations in June 2017 and the judgement was published on 5th September 2017.

It is worth making the point that Mr Barbulescu’s ECHR case was directed not against his employer but against the State of Romania.  It had not, he alleged, protected his rights under Article 8 of the European Convention entitling him to respect for his private life and correspondence.

This time, he won, by 11 judges to 6.  The ECHR found that the State of Romania had breached his human rights in that neither its County Court nor its Court of Appeal had approached the matter properly.  The explanation for this is contained in paragraph 140 of the Judgment:

"… It appears that the domestic courts failed to determine, in particular, whether the applicant had received prior notice from his employer of the possibility that his communications on Yahoo Messenger might be monitored; nor did they have regard either to the fact that he had not been informed of the nature or the extent of the monitoring, or to the degree of intrusion into his private life and correspondence.  In addition, they failed to determine, firstly, the specific reasons justifying the introduction of the monitoring measures; secondly, whether the employer could have used measures entailing less intrusion into the applicant's private life and correspondence; and thirdly, whether the communications might have been accessed without his knowledge."

Of course, had they done so, they might still have found for the employer. We will never know.

No doubt, this paragraph will be relied upon in English cases by claimants who wish to allege that their human rights have been breached and an Employment Tribunal should take this into account when deciding whether or not they have been unfairly dismissed or otherwise disciplined.

As it happens, the ECHR judgement does not indicate that Mr Barbulescu’s employer did anything wrong, merely that the Romanian courts did not handle his claim and appeal satisfactorily.

Had the Romanian courts covered the points in the paragraph noted above (for example establishing that the employer had told Mr Barbulescu that his emails would be monitored before he sent them, rather than after) then the outcome might have been entirely different.

There are clearly lessons for UK employers to learn from this judgement but the basic principle contained in my January 2016 newsletter stands.  What I said then was that "the point to be made here is that the employer ought to have in place robust policies to make it abundantly clear what is and is not acceptable during work time."  That still applies.

My January 2016 newsletter was largely prompted by a newspaper report which horribly misreported what the court judgement had actually said.

Here we go again.  You can read here  the Guardian report whose headline reads "Romanian whose messages were read by employer had ‘privacy breached’."

Not quite.  What the judgement states is that the Romanian courts had not upheld his right to privacy by asking the right questions.

So Mr Barbulescu was vindicated, 10 years and one month after his dismissal.  I wonder if he was satisfied at the outcome.

He asked the ECHR to award him €60,000 for his loss of earnings by way of pecuniary damage and a further €200,000 by way of nonpecuniary damage.  He said that because of his dismissal, “he had been unable to find another job, that his standard of living had consequently deteriorated, that he had lost his social standing and that as a result, his fiancée had decided in 2010 to end their relationship."

The ECHR declined to award him anything for his loss of earnings saying that it could not discern "any causal link between the violation found and the pecuniary damage alleged."

It went on "the court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage that may have been sustained by the applicant."

No compensation, then.  He was however awarded €1,365 towards the costs incurred over the previous 10 years.

Well worth the effort.

As always, these newsletters are only a guide to some changes in Employment Law.  They are by no means exhaustive nor an alternative to getting proper advice about your particular problem.  Expressions of opinion are to be taken as my own and do not necessarily represent the view of the firm.  Please call me for more help on any employment matter.

 

With best wishes,


MALCOLM LAWRENCE

e-mail : mjl@copleyclark.co.uk

Posted in: Employment

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