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Tijdschrift European Employment Law Cases x Jaar 2017 x
ECtHR Court Watch

ECtHR 5 September 2017 (Barbulescu), Application no. 61496/08, Privacy

Barbulescu – v – Romania, Romanian case

Tijdschrift European Employment Law Cases, Aflevering 4 2017
Trefwoorden Fundamental rights, Privacy
Samenvatting

    In Barbulescu, the Court examined for the first time a case concerning the monitoring of an employee’s electronic communications by a private employer. The Grand Chamber decided differently from the Chamber, when it concluded that the Romanian courts, in reviewing the decision of a private employer to dismiss an employee after having monitored his electronic communications, failed to strike a fair balance between the interests at stake: namely the employee’s right to respect for his private life and correspondence, on the one hand, and his employer’s right to take measures to ensure the smooth running of the company, on the other.

Case Reports

2017/21 Legal rules for employers for monitoring employees in Slovakia (SK)

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Privacy, Unfair dismissal
Auteurs Gabriel Havrilla en Richard Sanák
SamenvattingAuteursinformatie

    An employer can monitor an employee’s emails provided it has made it clear beforehand that it might do so. It is permissible for the employer to prohibit employees from using its electronical equipment for private use, but if the employer is going to check whether this rule was being complied with, it needs to have a significant reason to do so and must respect the principles of legality legitimacy and proportionality.


Gabriel Havrilla

Richard Sanák
Gabriel Havrilla and Richard Sanák are respectively managing partner and junior associate with law firm Legal Counsels s.r.o., www.legalcounsels.sk.
Case Reports

2017/20 Data gathered by GPS as a basis for disciplinary dismissal (PT)

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Privacy
Auteurs Maria de Lancastre Valente en Mariana Azevedo Mendes
SamenvattingAuteursinformatie

    Distance-related data gathered by GPS and data reported manually by the employee (a sales representative at a pharmaceutical company) are valid and admissible sources of evidence in the context of a disciplinary dismissal procedure. This decision is innovative in that it contradicts the usual view of the Supreme Court of Justice on the scope of ‘distance-controlled supervision’ for the purposes of assessment of employee conduct.


Maria de Lancastre Valente

Mariana Azevedo Mendes
Maria de Lancastre Valente and Mariana Azevedo Mendes are respectively a Managing Associate and a Trainee Associate at SRS Advogados, Portugal; www.srslegal.pt.

    The Supreme Court ruled that evidence of wrongdoing obtained by a company against two former executives was admissible in court, as it was legitimate that the company should have the opportunity to defend its right to free competition. In such cases, the executives’ right to privacy of communication should be balanced against the company’s freedom of competition.


Effie Mitsopoulou
Effie Mitsopoulou is a partner with Kyriakides Georgopoulos Law Firm in Athens, www.kglawfirm.gr.
ECtHR Court Watch

ECtHR 26 January 2017, application no. 42788/06, Right to fair hearing and right to respect for private and family life

Surikov – v – Ukraine, Ukrainian case

Tijdschrift European Employment Law Cases, Aflevering 2 2017
Trefwoorden Right to respect for private and family life
Samenvatting

    ECtHR concludes that there has been a violation of Article 8 (right to respect for private and family life) in the case of retention and disclosure of an employee’s mental-health data and its use in deciding on employees’ applications for promotion.

    The Curia (Hungarian Supreme Court) stated in its ruling that length of service is not a protected characteristic under discrimination law. Length of employment cannot be considered as a core feature of the individual based on which he or she would belong to a specific group, as it is a result of his or her own actions. It therefore cannot be treated as a ‘miscellaneous’ ground for the purposes of the Hungarian Equal Treatment Act. Further, length of service cannot be linked to age discrimination. The length of service of an employee is not directly connected to age, therefore treatment of an employee based on length of service with a specific organisation cannot be considered age discriminatory.
    A claim based on discrimination must be supported by a comparator. Employees with different educational backgrounds and jobs with different the educational requirements, are not comparable for the purposes of equal treatment law.


Gabriella Ormai
Gabriella Ormai is the managing partner of the Budapest office of CMS Cameron McKenna LLP (www.cms-cmck.com).
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