BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

against Mr Bărbulescu’s claim. 33 The same is true for the ban on private telephone use or the storage of personal belongings. 34 The Bărbulescu case shows that a dismissal can be justified even though no actual harm has ever been caused to the employer’s business through the breach. Although the ECtHR endorses the Romanian courts’ reasoning that the dismissal was justified because the employer was empowered to check ‘the manner in which professional tasks are undertaken, and because misuse of social media could damage the company’s IT systems, or engage in illicit activities in the company’s name, or reveal the company’s commercial secrets, there is no evidence that the employee’s personal e-mailing had interfered with his work or caused other harm to the employer. Simply, the fact of using the employer’s computer in a prohibited manner was taken to be sufficient. Media reports concentrate on the employer policy in place regarding the personal use of company time, resources and property, and the monitoring of employees at work, but they ignore respective statutory provisions. With regard to the provisions cited, it has to be pointed out that there is no need to issue was that specify and implement a social media policy in order to limit the use of company property for personal internet media. 35 The legal duty is entrenched in laws. However, most workplaces in Central and Eastern European similarly to those in Western Europe tolerate a limited amount of personal use of company equipment on the grounds that a blanket prohibition would be impractical or even unfeasible. It is because of this on-off relationship with regard to this issue that Bărbulescu remains a useful reminder to Central and Eastern European countries to have clear policy in the workplace as well. 6. Monitoring Personal Internet Use Monitoring employee use of social media raises further considerations for employers as they will need to comply with a potentially wide range of legislation in the applicable jurisdiction. All four countries have very strict legislation governing monitoring. Telephone calls and e-mails from employer premises are covered thanks to the ECtHR’s judgment in Halford 36 and with regard to personal Internet use to Copland. 37 Therefore, it is significantly easier to restrict access to certain websites as part of an employer’s IT policy 38 than it is to monitor employee social media activity. The general position is that employers may not, without compelling reasons, violate employee privacy in the workplace or in the common areas of the employer premises. 39 33 See judgment Bărbulescu , marginal numbers 38 and 39. 34 See Peev v. Bulgaria , no. 64209/01, 26 July 2007. 35 Nevertheless, it is difficult to conclude if employers may forbid employees from using their personal cell phones or to bring their personal laptops to the workplace. 36 Halford v. the United Kingdom , judgment of 25 June 1997, Reports of Judgments and Decisions 1997-III. See judgment Bărbulescu, marginal number 36. 37 Copland v. the United Kingdom (no. 62617/00, ECHR 2007-I. 38 There is no recognised employee right to the internet in the Czech, Polish, or Slovak legal traditions. 39 Article 316 of the Czech Labour Code, Article 23 I point 5 of the Polish Act of 29 August 1997 or Article 11 of the Slovak Labour Code (Fundamental Principles). From case law compare the Polish Supreme Court decision 25 July 2003, file number I PK 330/2002.

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