13/10/2017

Court decision in Bărbulescu v. Romania

On 5 September 2017, the Grand Chamber of the European Court of Human Rights (the “ECHR”) examined for the first time the issue of the monitoring of electronic communications of an employee by a private employer, within the framework of an action brought by Mr Bărbulescu, an engineer employed by a private company in Romania. Mr Bărbulescu had been dismissed for using for personal purposes, in breach of the provisions of the internal regulations of the company, a professional Yahoo Messenger account created at his employer’s request for the purpose of responding to customers’ enquiries.

The decision handed down last month overturns a ruling made less than two years earlier in the same case. The ECHR had then held, by six votes to one, that the monitoring by the employer of the communications of Mr Bărbulescu had been reasonable in the context of disciplinary proceedings deeming that the domestic Romanian courts had struck an adequate balance between the employee’s right to respect for his private life and correspondence and the employer’s interests.

This decision in which the Grand Chamber has just held, by eleven votes to six, that there has been a violation of the applicant’s right to respect for his private life does not however constitute an absolute enshrinement of the right of employees to protection of their privacy to the detriment of the employer’s right to carry out monitoring. In reality, its impact on employers in Luxembourg will be limited (I). However, in the light of the facts of the decision (II), it is highly advisable that employers eager to implement a monitoring system to ensure that their employees spend their working time performing their professional duties, should make sure that they observe a particular time schedule as well as follow the methodology suggested by the Court (III).

> To read the full Newsflash, please click here

Contacts

Philippe Schmit

Philippe Schmit is a Partner in the Employment Law, Pensions & Benefits practice. Philippe advises employers in the financial and industrial sectors on all aspects of the employment relationship (including its termination). He also specialises in all matters related to restructuring and reorganisation, negotiation in the context of collective dismissals and collective bargaining procedures, as well as any other HR aspects triggered by corporate restructuring, including M&A (e.g. transfers of undertakings). His practice encompasses advice on compensation and benefits schemes, equity schemes, share options plans and pension schemes. Philippe also has extensive knowledge of expatriation matters...

PARTNER

YOU MIGHT ALSO WANT TO DISCOVER

09/04/2021
The revised Commission merger control referral mechanism – Practical considerations for Luxembourg M&A transactions

On 26 March 2021, the European Commission (the “Commission”) published “Commission Guidance on the application of the referral mechanism set out in Article 22 of the Merger
Regulation to certain categories of cases”.1

Read More_