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Romania: Court examines complaint from employee sacked for using internet at work

This morning, a Grand Chamber hearing opened to examine a complaint against Romania over the monitoring of an engineer’s internet use at work and his subsequent dismissal.

The European Court of Human Rights hearing in the case of Bărbulescu v. Romania (application no. 61496/08) The case concerns an employee’s dismissal by a private company for having used the company’s Internet for personal purposes during working hours, in breach of internal regulations.

The hearing will be broadcast from 2.30 p.m. on the Court’s Internet site (www.echr.coe.int).

The applicant, Bogdan Mihai Bărbulescu, is a Romanian national who was born in 1979 and lives in Bucharest.

From 1 August 2004 until 6 August 2007, Bărbulescu was employed by a private company as an engineer in charge of sales. At his employers’ request, he created a Yahoo Messenger account for the purpose of responding to clients’ enquiries.

On 13 July 2007, Bărbulescu was informed by his employer that his Yahoo Messenger communications had been monitored from 5 to 13 July 2007 and that the records showed he had used the internet for personal purposes. Bărbulescu replied in writing that he had only used the service for professional purposes. He was presented with a transcript of his communication including transcripts of messages he had exchanged with his brother and his fiancée relating to personal matters such as his health and sex life.

On 1 August 2007, the employer terminated Bărbulescu’s employment contract for breach of the company’s internal regulations that prohibited the use of company resources for personal purposes.

Bărbulescu challenged his employer’s decision before the courts complaining that the decision to terminate his contract was null and void as his employer had violated his right to correspondence in accessing his communications in breach of the Constitution and Criminal Code. His complaint was dismissed on the grounds that the employer had complied with the dismissal proceedings provided for by the Labour Code and that Bărbulescu had been duly informed of the company’s regulations.

Bărbulescu appealed claiming that e-mails were protected by Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention on Human Rights. In a final decision on 17 June 2008 the Court of Appeal dismissed his appeal and, relying on European Union law, held that the employer’s conduct had been reasonable and that the monitoring of Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach.

Relying in particular on Article 8 of the European Convention, Bărbulescu complains that his employer’s decision to terminate his contract was based on a breach of his privacy.

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