Readers may remember that we reported on this case at the European Court of Human Rights in January 2016. It involved a Romanian employee who was employed in Bucharest as a sales engineer. At his employer’s request, for the purpose of responding to customers’ enquiries, he created an instant messaging account using Yahoo Messenger, an online chat service offering real-time text transmission over the internet. He already had another personal Yahoo Messenger account. His employer’s internal regulations prohibited the use of company resources by employees for personal use but, crucially, did not contain any reference to the possibility for the employer to monitor employees’ communications.

The claimant was warned not to use his employer's facilities for personal matters again after another employee was dismissed and the employer sent this bizarre instruction around the workplace less than a month before his dismissal:

"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. This is what [elementary education], common sense and the law dictate! The employer has a duty to supervise and monitor employees’ work and to take punitive measures against anyone at fault!"

The communication also included the line, "Your misconduct will be carefully monitored and punished!"

The warning continued in that vein. Nonetheless, the engineer did use his email account for private correspondence, including emails of an intimate nature, to his fiancée and brother. The employer monitored those emails and dismissed the employee.

In 2016, the ECtHR concluded that it may be permissible to monitor an employee's use of the internet, subject to the principles of proportionality and reasonableness. The Court found by a majority of six to one that the domestic courts in Romania had struck a fair balance, within their margin of appreciation, between the applicant’s right to respect for private and family life, the home and correspondence under Article 8 and his employer’s interests.

One judge dissented at that time (partly because the transcripts of the messages were made available to the applicant’s colleagues and even discussed by them) and, after an appeal to the Court's Grand Chamber, the Court has agreed (again by majority) with the dissenter - the employer's response was not reasonable and, in the words of one of the judges who felt the monetary award was inadequate, "... the domestic courts did not ensure adequate protection of the applicant’s right to respect for his private life and correspondence: the applicant was seriously affected by the disciplinary proceedings against him, since he was dismissed from his post." The engineer had argued that, as a result of losing his job for disciplinary reasons, he had not found another one, had lost his social standing and that as a result of that his fiancée ended their relationship.

So, what might have struck a better balance between the interests of employees and employers? It seems that the deciding factor is whether employees have been explicitly warned in advance that their emails (as opposed to misconduct, as above?) will be monitored and that employers should consider less intrusive ways to protect their interests:

"... 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"
https://hudoc.echr.coe.int/eng#{"itemid":["001-177082"]}