10.6092/issn.1561-8048/10015
This article explores the impact of the European Convention on Human Rights (ECHR) on the employee’s privacy protection. The cases where the States in response to European Court of Human Rights (ECtHR) judgments adopted changes into their national labour law are considered as direct impact of the European Convention on Human Rights (ECHR), while the mechanisms elaborated by the ECtHR for the adjudication of cases involving employee’s privacy as well as the set of positive obligations deduced from Article 8 are examined as the sources of indirect impact. We argue that the Court’s approach to the matters of employee’s testing and surveillance are applicable for the estimation of new challenges to privacy such as keylogging, screenshotting, geolocation and polygraph testing. This research permits us to affirm that Article 8 of the ECHR has great potential in the field of employment law.
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Daria Chernyaeva
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The Impact of the ECHR on Employee’s Privacy Protection
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2019-11-13
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ILLeJ
Daria Chernyaeva
2019/12/17
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The Impact of the ECHR on Employee’s Privacy Protection
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    The impact of the ECHR on employee’s privacy                                                                       Italian Labour Law e-Journal
    protection                                                                                                                Issue 2, Vol. 12 (2019)
    Elena Sychenko - Daria Chernyaeva                                                                                               ISSN 1561-8048
    e.sychenko@mail.ru                                                                               https://doi.org/10.6092/issn.1561-8048/10015
__________________________________________________________________________________________________




          The Impact of the ECHR on Employee’s Privacy
                            Protection
                                                        Elena Sychenko - Daria Chernyaeva



1. Introduction. 2. The ECTHR Impact on National Employment Policies. 3. Employee’s
Privacy Protection. 3.1. Framework for the Consideration of Cases on Employee’s Privacy.
3.2. The ECTHR’s Consideration of the Proportionality of the Interference. 3.3. The General
Impact of the ECTHR’s Framework for the Consideration of Cases on Employee’s Privacy.
4. Protection from Unfair Dismissal. 4.1. Preceding Link’: When Peculiarities of an
Employee’s Private Life are used as a Reason for the Dismissal. 4.2. Ensuing Link: when the
Dismissal Brings about Consequences that Affect the Dismissed Person’s Right to Establish
and Develop Relationships with Others. 5. Conclusions.



                                             Abstract:
 This article explores the impact of the European Convention on Human Rights (ECHR) on the
employee’s privacy protection. The cases where the States in response to European Court of Human
Rights (ECtHR) judgments adopted changes into their national labour law are considered as direct
impact of the European Convention on Human Rights (ECHR), while the mechanisms elaborated
by the ECtHR for the adjudication of cases involving employee’s privacy as well as the set of positive
obligations deduced from Article 8 are examined as the sources of indirect impact. We argue that the
Court’s approach to the matters of employee’s testing and surveillance are applicable for the
estimation of new challenges to privacy such as keylogging, screenshotting, geolocation and
polygraph testing. This research permits us to affirm that Article 8 of the ECHR has great potential
in the field of employment law.

Keywords: Private life; Employee; Covert video; ECtHR; Privacy.



1. Introduction.

   In recent decades the topic of human rights in employment relations has become widely
discussed1, particularly in the light of Human Rights Act provisions in Britain and certain



  Elena Sychenko, Associate Professor at Saint Petersburg State Polytechnic University; Daria Chernyaeva,
Associate Professor, National Research University Higher School of Economics, Moscow. This article has been
submitted to a double-blind peer review process.
1 Ewing, K. D., The Human Rights Act and Labour Law, in Industrial Law Journal, 27(4), 1998, 275-292; Collins,

H., Theories of rights as justifications for labour law, in G Davidov, В Langille (eds.), The Idea of Labour Law, OUP,
Oxford, 2011, 137; Mundlak, G., Labor Rights and Human Rights: Why Don't the Two Tracks Meet?, in Comparative
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landmark judgments of the European Court of Human Rights (ECtHR). This paper was
largely inspired by an intention to explore and summarise the factual and potential impact of
Article 8 of the ECHR in the practical implementation of employee’s privacy protection.
    According to Article 8 of the ECHR everyone has the right to respect for his private and
family life, his home and his correspondence. However, the ECtHR has gradually expanded
the scope of this article to cover also protection of moral, psychological and physical integrity
of a person2, protection of the right to personal development3, to establish relationships with
others (including relationships of a professional nature)4, to access a profession in the private
sector5, and to receive information about occupational risks6.
    In this paper we analyse the way the ECtHR considers the cases on employee’s privacy
under Article 8 of ECHR, focusing on its interpretation of the requirements set in Article
8(2), and summarise the contributions of the ECtHR to national employment law and
practice. These research interests determine the structure of our paper: firstly we briefly
outline the way the ECtHR may impact national employment policies (Paragraph 1), proceed
with the analysis of the ECtHR’s approach to the scope of employee’s privacy at work and
elaborate on the contributions of Article 8 to employment regulation in the sphere of the
employee’s privacy (Paragraph 2) and conclude with the considerations concerning the
relevance of Article 8 for protection from unfair dismissal in cases when grounds for the
dismissal stemmed from – or were based on - the breach of employee’s privacy (Paragraph
3).


2. The ECtHR impact on National Employment Policies.

   There are two main ways by which the ECtHR may influence national employment
regulations: direct way - through the adoption by the respondent State of general measures,
required by a particular judgment; and indirect one – by imposing upon the states the positive
obligations of respecting the human rights at the workplace. The ECtHR also indirectly
impacts national employment regulations with the establishment of the requirements to the
due consideration of employment disputes at a national level.
   The information on the direct impact of the ECtHR upon national employment
legislation may be drawn from the final resolutions of the Council of Ministers (a body which
ensures the execution of the ECtHR judgments)7. As an example of the direct impact of
Article 8 on national employment law we may recall the following changes to the UK


Labor Law and Policy Journal, 34, 2012 237; Compa L., Solidarity and Human Rights, in New Labor Forum, 18,
2009, 38; Kolben, К., Labor Rights as Human Rights?, in Virginia Journal of International Law, 50, 2010.
2 ECtHR, Brincat and others v. Malta, Raninen v. Finland (20972/92) 16/12/1997; Kyriakides v. Cyprus

(39058/05) 16/10/2008.
3 ECtHR, Oleksandr Volkov v. Ukraine (21722/11) 09 January 2013, para. 65.
4 ECtHR, С. v. Belgium (21794/93) 07 August 1996, para. 25.
5 ECtHR, Sidabras and Džiautas v. Lithuania (55480/00, 59330/00) 27 July 2004, para. 47.
6 ECtHR, Brincat and others v. Malta (60908/11, 62110/11, 62129/11, 62312/11, 62338/11) 24 July 2014;

Vilnes and others v. Norway (52806/09 22703/10) 05 December 2013.
7 http://www.coe.int/en/web/execution/closed-cases (Last access 20 august 2019).


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legislation: the abolition of the possibility to dismiss service men for homosexuality8, the
enactment of the legislation providing a regulatory framework for interceptions on private
telecommunication networks and providing more detailed and foreseeable regulation of
interceptions of other electronic communications9; inclusion of specific provisions about the
disclosure of pictures from surveillance cameras to limit the retention and to restrict
disclosure of images to third parties10. In other European countries we may trace the
improvement of the protection of employees’ private life in Portugal, where the legislation
provided effective remedies in case of security investigations11. In Sweden the statutory
prohibition for covert filming in private places was adopted following the ECtHR
judgment12.
    The indirect impact of Article 8 of ECHR upon national employment regulations can be
illustrated through a more detailed analysis of the positive obligations States should
implement while adopting policies effecting private life of employees. The ECtHR’s
conclusions about the due consideration of labour disputes involving the right to privacy
also constitute an indirect source of influence upon national employment regulations. Both
ways of indirect impacts will be discussed below.


3. Employee’s Privacy Protection.

   Employee’s privacy is one of the most debated questions in labour law literature13. It is
believed to be an inherent part of an individual’s dignity and autonomy14. The establishment
of the borders for the employer’s interference with the life of an employee is the way to
preserve this dignity and autonomy taken the initial dependence of the employee.
   Protecting the employee’s privacy has become a particularly difficult task in the modern
digitalised world15. The present analysis of the ECtHR’s case law is intended to establish the




8  ECtHR - 31417/96, 32377/96 Lustig-Prean and Beckett v. UK, (27 September 1999); 33985/96,
33986/96 Smith and Grady v. UK, 27 September 1999.
9 Halford, Appl. No. 20605/92, Final Resolution CM/ResDH, (2007),15; ECtHR, Liberty and Others, Appl.

No. 58243/00, Final Resolution CM/ResDH, (2011), 83.
10 C.N., Appl. No. 4239/08, Final Resolution CM/ResDH, 2014, 34.
11 ECtHR, Antunes Rocha, Appl. No. 64330/01, Final Resolution CM/ResDH, 2013, 230.
12 ECtHR, Söderman, Appl. No. 5786/08, Final Resolution CM/ResDH, 2014, 106.
13 Hendrickx F., From Digits to Robots: The Privacy-Autonomy Nexus in New Labor Law Machinery, in Comp. Lab. L.

& Pol'y J., 40, 2018, 365; Martin K., Understanding privacy online: Development of a social contract approach to privacy, in
Journal of Business Ethics, 137, 3, 2016, 551-569; Lam H., Social media dilemmas in the employment context, in Employee
Relations, 38, 3, 2016, 420-437
14 Freedland M., Data Protection And Employment In The European Union, An Analytical Study of the Law and Practice

of Data Protection and the Employment Relationship in the EU and its Member States, 1999,
http://ec.europa.eu/social/main.jsp?catId=708, (last access 20 May 2019).
15 Parry E., Strohmeier S., HRM in the digital age – digital changes and challenges of the HR profession, in Employee

Relations, 36 (4), 2014; Lynch P., The Naked Employee: How Technology Is Compromising Workplace Privacy in Journal
of Applied Management and Entrepreneurship, 9(2), 2004, 116.

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ECtHR approach to the issues of employee’s privacy protection (searches, video surveillance,
interception of calls, drug controls).


3.1. Framework for the Consideration of Cases on Employee’s Privacy.

   According to the ECtHR, the words "private life" and "home" should be interpreted as
including certain professional or business activities or premises16. This approach permitted
to spread the protection of privacy over the workplace and the ECtHR introduced a
framework for considering cases concerning employees’ privacy. In case of the interference
the respondent state should demonstrate that it was in conformity with the requirements of
Paragraph 2 of Article 8 (in case of public employees). In case of private employees, the state
has to demonstrate that it fulfilled its positive obligation arising from Article 8 and/or that
national courts correctly considered the case in line with the article17. In both cases the
ECtHR firstly establishes if the employee had a legitimate expectation of privacy, which
depends largely on the particular circumstances of the case18. Then the ECtHR considers if
there had been an interference with the right to privacy and evaluates its lawfulness and
necessity19. As the final step the ECtHR rigorously assesses the proportionality of the
interference to the legitimate aim pursued by the employer20.
   The ECtHR examined in this way the claims on searches of working premises, monitoring
of internet use, e-mails, and interception of the telephone calls21.
   The reasonableness of the expectations of privacy in these cases depends, amongst other
things, on the questions of whether the employee was informed about the fact that an
interference with his right to privacy was possible; the presence of specific indications of the
possibility of such interference; or the (permanent) nature and the impact of the
interference22. The ECtHR found a violation as the applicants being public employees had a
legitimate expectation of privacy and were not informed about the possibility of




16 ECtHR - 13710/88 Niemietz v. Germany, (16/12/1992), para. 31.
17-ECtHR,      Köpke v. Germany (420/07) inadmissible 05/10/2010; Bărbulescu v. Romania
(61496/08)12/01/2016.
18 See, for example, ECtHR, Halford v. United Kingdom (20605/92) 25/07/1997, para. 44 and Copland v. the

United Kingdom (62617/00) 03/04/2007, para. 42.
19 ECtHR, Halford v. United Kingdom (20605/92) 25/07/1997; Copland v. the United Kingdom (62617/00)

03/04/2007; ECtHR, Peev v. Bulgary, para. 43.
20 ECtHR, Halford v. United Kingdom (20605/92) 25/07/1997; Copland v. the United Kingdom (62617/00)

03/04/2007; ECtHR, Peev v. Bulgary, para. 43.
21 ECtHR - 20605/92 Halford v. United Kingdom, 25/07/1997; 62617/00 Copland v. the United Kingdom

03/04/2007; ECtHR - Peev v. Bulgary, paras. 43.
22 Hendrickx F., Bever A.V., Article 8 ECHR: judicial patterns of employment privacy protection in Dorssemont F.,

Lörcher K., Schömann I. (eds.), The European Convention on Human Rights and the Employment Relation, 2013, 189.

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searches/monitoring, the employer did not adopt the relevant regulations, thus the
interference was not in accordance with the law.
    “In accordance with the law”.
    The ECtHR had stated that the phrase “in accordance with the law” requires, at a
minimum, compliance with domestic law23. The quality of that law is also relevant24. It should
be foreseeable and sufficiently clear in its terms to give individuals an adequate indication as
to the circumstances in which and the conditions on which the State would be entitled to
resort to measures affecting those rights25.
    In the view of the ECtHR in order to find the interference to be in accordance with law,
the law in question should be accessible to the individual concerned26 and be clearly
formulated27. In Antunes Rocha v. Portugal28, which concerned the surveillance of the
employee’s home for security reasons, the ECtHR found the violation of Article 8 as the
legislation, permitting such surveillance, was “too vague” and “did not contain any control
mechanisms or provide any safeguards for individuals”29.
    In certain cases, the ECtHR, having established the lack of relevant national legislation,
has been satisfied by existing employer’s policies which themselves provide some privacy
protection to its employees. For example, in cases of obligatory drug tests, such as in Wretlung
v. Sweden30, the ECtHR noted that the requirement of lawfulness in countries where labour
issues were mainly regulated by the parties on the labour market can be satisfied by the
establishment of relevant provisions in collective agreements or the employer’s policy31.
    In Köpke v. Germany which concerned covert video surveillance of the cashier the ECtHR
determined the lack of relevant legislation but was satisfied with the developed case-law of
German courts32. These courts elaborated an algorithm for the consideration of similar cases
which ensured a careful balancing of the rights of the employees and of the employers. Thus,
even in the roman legal system countries where the precedent does not have the role of the
source of law the requirement of “lawfulness” may be satisfied through the establishment of
a national judicial approach to cases dealing with employee’s privacy.
    A very curious example of such an approach to the “lawfulness” may be found in Ribalda
and others v. Spain. The Chamber of the ECtHR decided in 2018 that the covert video
recording of the supermarket employees constituted the violation because it did not comply
with the requirements stipulated in the Spanish Personal Data Protection Act as the
employees were not informed about the collection of private data33. The Grand Chamber,
reconsidering this case, distanced from the analysis of the lawfulness and pointed that non-
compliance with the national law was “just one of the criteria to be taken into account in

23 ECtHR, Antović and Mirković v. Montenegro (70838/13) 28.11.2017.
24 ECtHR, Malone v. The United Kingdom (8691/79) 02/08/1984, para. 68.
25 ECtHR - 8691/79 Malone v. The United Kingdom, (02/08/1984), paras. 68.
26 ECtHR - 58341/00 Madsen v. Denmark, inadmissible (07/11/2002).
27 ECtHR - 24029/07 M.M. v. UK, (13/11/2012), paras. 198.
28 ECtHR - 64330/01 Antunes Rocha v. Portugal, (31.05.2005).
29 ECtHR - 64330/01 Antunes Rocha v. Portugal, (31.05.2005), paras. 74-77.
30 ECtHR - 46210/99 Wretlund v. Sweden inadmissible, (09.03.2004).
31 Similar conclusions can be found in ECtHR - 58341/00 Madsen v. Denmark, inadmissible (07.11.2002).
32 ECtHR, Köpke v. Germany (420/07) inadmissible 05/10/2010.
33 ECtHR - 1874/13 8567/13 López Ribalda and others v. Spain, (09/01/2018), paras. 69.


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order to assess the proportionality of a measure”34. The results of further examination of the
case demonstrate that the criterion of lawfulness is not decisive at all: the ECtHR found that
domestic courts, even though they did not take into account the violation of the relevant
national legislation by the employer, fulfilled the State’s positive obligations under the
ECHR.
    The reasoning of the ECtHR in this judgement is rather vague. It acknowledges that the
boundaries between the State’s positive and negative obligations under the Convention do
not lend themselves to precise definition and that the applicable principles are similar but, in
the end, it significantly reduces the requirements for the compliance with the positive
obligations. the applicable principles were indeed similar the criteria of lawfulness should
have been taken into account by the national courts while assessing the interference with the
right to privacy and should have been decisive (as it was in cases Antović and Mirković v.
Montenegro35 or Radu v. Moldova (2014). Deciding otherwise, in our opinion, might amount to
unfair difference in treatment of employees who suffered the intrusion with their privacy
rights and did not succeed to protect it according to the national law even though such
protection should have been granted. We also believe that denying the underlying value of
the lawfulness criteria leaves impermissibly broad the margin of appreciation of the states as
far as private employees are concerned. It leaves with little sense the well elaborated by the
ECtHR requirement to the quality of law, which should be “precise, certain, and
foreseeable”.36
    Having said this let us proceed with the next criteria which is “necessity of the interference
in the democratic society”.
    Is the interference necessary in a democratic society?
    Where the lawfulness of interference has been established, the ECtHR will turn to an
analysis of its necessity in a democratic society. This test permits to balance the rights
concerned (usually the employee’s privacy versus employer’s managerial rights) considering
the particular circumstances of the case.
    For instance, in the case Yilmaz v. Turkey (2019) the claimant was refused an appointment
to a teaching post abroad on the grounds of security investigation results concerning his
private life (his behavior at home and his wife's clothing style). Nonetheless, neither the
Ministry of Education as an employer, nor the local courts provided any grounds or
explanations that could justify the refusal to the claimant concerning the public-interest or
specific public needs and features of educational and teaching services. In this case the
ECtHR found a violation of Article 8 of ECHR explaining that while “...such interference
had been in accordance with the law and had pursued one of the legitimate aims referred to
in Article 8, […] in any event it had not been necessary in a democratic society”37. Thus, the
ECtHR concluded that the use of security investigation results in the claimant's private life
was not necessary for the post obligations of a teacher abroad. Such an interference



34 ECtHR - 1874/13 8567/13 Grand Chamber, López Ribalda and others v. Spain, (17/10/2019), paras. 131.
35 ECtHR - 70838/13 Antović and Mirković v. Montenegro, (28.11.2017).
36 ECtHE - 24029/07 M.M. v. UK, (13/11/2012).
37 ECtHR - 36607/06 Yilmaz v. Turkey, (04.06.2019).


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constituted the violation of the right to respect of private life and was not in compliance with
democratic values of the society despite its legitimate aims (such as public safety).
   Another two cases (similar to each other) discussed below relate to data protection in the
context of the employer’s ability to gather urine samples for drug and alcohol tests. The fact
scenarios in Madsen v. Denmark38 and Wretlund v. Sweden are quite similar. In both applications
the employees (Mr Madsen, passenger assistant, and Mr Wretlund, office cleaner at a nuclear
plant) argued that the obligatory testing system itself amounted to the violation of their right
for private life. life. Examining the necessity of interference in the democratic society, the
ECtHR noted that the need to ensure public safety and the protection of the rights and
freedoms of others justified adequate control measures like a random urine test. It is
interesting to note that to substantiate this conclusion in Madsen the Court referred in its
deliberations to the Guiding Principles on Drugs and Alcohol Testing Procedures for
Worldwide Application in the Maritime Industry adopted by the joint ILO/WHO
Committee on the Health of Seafarers in 199339.
   Further the Court took into account the following circumstances, as established by the
national courts:
           • Employees were appropriately informed about the possibility of such tests
                 being conducted;
           • The frequency of tests;
           • Advance notice;
           • Coverage of all employees without any exception;
   An examination of the factors set out above led the ECtHR to conclude that the assumed
interferences were, in these instances, justifiable on the basis that they were “necessary in a
democratic society” and declared each of the applications as being manifestly ill-founded40.
   The ECtHR’s reasoning in these cases matters for Europe because in most of the
European countries there are no express provisions concerning bodily privacy and
approaches differ significantly between jurisdictions41.
   The ECtHR’s approach to the necessity of conducting drug tests on employees might
provide general guidelines for finding a balance between the employee’s right to privacy and




38   ECtHR - 58341/00 Madsen v. Denmark, inadmissble (07 November 2002).
39 Ibid.
40 ECtHR, Wretlund v. Sweden (46210/99) inadmissble 09 March 2004, Madsen v. Denmark (58341/00)
inadmissble 07 November 2002.
41 Verstraete, A. G., Pierce, A., Workplace drug testing in Europe, in Forensic Science International, 121(1), 2001, 114.


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the employer’s rights and help members of the CoE create a framework of protection based
on the interpretation of the ECHR.


3.2. The ECtHR’s Consideration of the Proportionality of the Interference.

      Proportionality test is one of the most controversial issues in privacy cases in particular
as far as private employees are concerned42. In cases concerning the positive obligations of
the State under article 8 the Court verifies if the right to privacy is effectively protected and
correctly balanced with the employer’s rights by national courts. These are cases on dismissal
of employees for non-compliance with their duties revealed by the means of video-
surveillance (in Köpke v. Germany43, Lopez Ribalda and others v. Spain44) and by monitoring
of private messages sent from corporate Yahoo messenger account (Bărbulescu v.
Romania45) and the access of employer to employee’s files on computer (Libert v. France46).
       It is noteworthy that the two leading cases on employee’s privacy were reconsidered
by the Grand Chamber of the ECtHR. Thus in 2016 the Chamber did not find the
violation of the article 8 in the case of an engineer, who was dismissed for the use of the
company's Internet for personal purposes after his personal messages were read by the
employer (Barbulescu v. Romania). The ECtHR concluded that the measure was
proportionate as the employer did not have another method to verify whether the applicant
infringed internal policy. It found that the employer acted within its disciplinary powers
and pointed that the monitoring was limited in scope and proportionate47. The Grand
Chamber reconsidered the case and delivered the judgment in 2017. By 11 votes to 6 it
decided that the State has violated its positive obligations under article 8 and included new
factors which should be taken into account by national courts in such cases thus extending
the proportionality exercise48.
      In the case Lopez Ribalda and others v. Spain the Chamber did not share the
domestic courts’ view on the proportionality of the measures adopted by the employer
because these acts did not comply with the requirements stipulated in the Spanish Personal
Data Protection Act. This led the Court to conclude that the domestic courts failed to
strike a fair balance between the applicants’ right to respect for their private life under
Article 8 of the Convention and their employer’s interest in the protection of its property
rights49. It was a good point for excluding the covert video surveillance at the workplace as
such. Indeed, the employer always has other ways and less intrusive methods to establish
the employees’ misbehaviour.

42 See controversial judgments delivered by the Chambers and the Grand Chamber of the ECtHR in cases
Bărbulescu v. Romania and López Ribalda v. Spain, and dissenting opinions of judges to each of these 4
judgments.
43 ECtHR - 420/07 Köpke v. Germany, inadmissible (05 October 2010).
44 ECtHR - application no. 1874/13 López Ribalda v. Spain, (09 January 2018).
45 ECtHR - 61496/08 Bărbulescu v. Romania, (12 January 2016).
46 ECtHR - application no. 588/13 Libert v. France, (22 February 2018).
47 ECtHR - 61496/08 Bărbulescu v. Romania, (12 January 2016), para. 60.
48 ECtHR - 61496/08 Bărbulescu v. Romania, (05 September 2017), para. 121.
49 ECtHR - 1874/13 8567/13 Lòpez ribalda and others v. Spain, (09 January 2018), para. 69.


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      The Grand Chamber, on the contrary, approved the approach of the national courts
in October 2019. It expressed a light criticism to Spanish courts for attaching little
attention to the fact of employees’ notification about the recording, but still concluded that
there had been no violation of the ECHR.
      These cases represent the lack of a solid approach to the proportionality analysis. It
remains too much linked with the perception of the value of privacy by particular judges,
all the judgments referred to above were accompanied by dissenting opinions of judges
who balanced the rights of employees and employers in another way.
    In 2018 the ECtHR considered the case Libert v. France where an applicant was dismissed
after the seizure of his work computer had revealed the storage of pornographic files and
forged certificates drawn up for third parties. In contrast with Bărbulescu case this application
was considered in the light of the State’s negative and positive obligations under Article 8 as
the applicant was employed by a state-owned company. The ECtHR considered that the
consultation of the applicant’s files pursued a legitimate aim of protecting the rights of
employers, who might legitimately ensure that the employees were using the working
facilities in line with their obligations and relevant regulations. It considered the French law
on workplace privacy protection and established that the existing legislation for the
protection of such rights prohibits employers from opening files identified as being “private”
(prive’) in the absence of an employee. Here we have to note that the applicant marked the
files in question as “personal” but nor “private”. These words can be easily regarded as
synonyms. The ECtHR noted that “admittedly, in using the word “personal” rather than
“private”, the applicant used the same word as that found in the Court of Cassation’s case-
law to the effect that an employer cannot, in principle, open files identified as “personal” by
the employee”50. Despite this finding the ECtHR proceeded with the conclusion that there
had been no violation, having considered the case in its “entirety” and has found the
reasoning of the domestic courts as sufficient. It also drew attention to the amount of the
storage space on the employee’s work computer to store the files in question (1,562 files
representing a volume of 787 megabytes).
    We suppose that this reasoning is particularly confusing after the Grand Chamber
judgment in Bărbulescu. The point of notification was the most important one in that
judgment. It is not clear from the first sight why the ECtHR grants less protection to the
personal files stored at the employer’s computer than to the private messages sent through
the employer’s account. The ECtHR’s reference to the “entirety” of the case doesn’t explain
much. In this case one of the reasons for a narrow approach to workplace privacy protection
might be the nature of files discovered by the employer. While the Bărbulescu case was about
personal messages with close relatives on sensitive private topics, the Libert case was about
porno files and the evidence of fraud committed by the applicant. Supposedly, focusing on
whether the words used to denote the files in question could be interpreted as reflecting the
private nature of files instead of following the common sense in understanding the meaning
of the words “private” or “personal” allowed the domestic court to find in favour of the
employer. The discovery of the gross employee’s misconduct during his suspension from


50   Ibid, para. 52.

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work seem to have indirectly served as an additional argument against him in all courts. The
ECtHR supported the view of the domestic court, thus signalling that interpretation of the
right to respect for private life at work can be very narrow and formal if employee’s acts are
non-compliant with corporate rules and regulations.
   Similarly, in Denisov v. Ukraine (2018)51 the grounds for the dismissal had nothing to do
with his private life, and the dismissal itself did not affect it (lower salary and loss of the
prestigious position cannot be considered such). Mr. Denisov was dismissed from his role as
president of the Kyiv Administrative Court of Appeal for a managerial inefficiency but
continued to serve as a regular judge for the same Court. Therefore, his dismissal could
hardly be regarded as a violation of Article 8 of the ECHR. This allowed the ECtHR to
declare the complaint inadmissible under Article 8.


3.3. The General Impact of the ECtHR’s Framework for the Consideration of Cases
on Employee’s Privacy.

   Estimating the general impact of the ECtHR’s framework for the consideration of cases
on employee’s privacy, discussed in Paras 2.1.-2.3., we assume that it is particularly valuable
for the UK. English common law has been reluctant to recognise a general right to the
protection of privacy52. In this system almost, absolute priority was given to management
prerogative and almost no recognition to workers’ private interests, however conceived. The
introduction of new technologies, no doubt including techniques of surveillance, and the
collection of information about workers have been treated as self-evident matters for
untrammelled management prerogative53.
   The adoption of the Human Rights Act in 1998 challenged the traditional approach. Since
then any interference with the employee’s right to privacy should be justified by a legitimate
aim, should be necessary for democratic society and proportionate to the aim pursed.
   British courts have already dealt with privacy issues at work in the light of Article 8 of the
ECHR (McGowan v. Scottish Water and P. Atkinson v. Community Gateway Association)54. Although
in both cases the EAT found in favour of employers and justified covert video surveillance
of employee’s home and the monitoring of private messages sent from employer’s e-mail
system, the application of ECHR standards evidences the step made towards employee’s
privacy protection. The research of proportionality of the interference in these cases was
more in favour of employers as if balancing employer’s rights to manage a business and the
employee’s right to private life British courts still follow the common law tradition to attach




51 GC - application no. 76639/11 Denisov v. Ukraine, (25 September 2018).
52 Deakin S. F., Morris G. S., Labour law. Hart publishing, Oxford, 2012, 386.
53 Ford M., Two conceptions of worker privacy, in Industrial Law Journal, 31(2), 2002, 148.
54 EATS - 0007/04, McGowan v Scottish Water; UNKEAT- 0457/12/BA Mr. P. Atkinson v. Community

Gateway Association. It is interesting to note that in the light of the GC judgment in Bărbulescu the reading of
privacy rights by EAT is not in line with the ECHR as national courts did not consider if the applicant was
notified about the possibility of monitoring.

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more weight to managerial prerogative. However, as Mark Twain once wrote: “The less there
is to justify a traditional custom, the harder it is to get rid of it”55.


4. Protection from Unfair Dismissal.

    The possibility to claim the violation of the right to respect for private life in case of unfair
dismissal is one of the most significant contributions of the ECtHR to the employment
regulation.
    The research of relevant case law demonstrates that unfair dismissal and the right to
respect for private life might be linked in two major ways:
              • ‘preceding’ - when some peculiarities of an employee’s private life are used
         as a reason for the dismissal;
              • ‘ensuing’ – when the dismissal brings about consequences that affect the
         dismissed person’s right to establish and develop relationships with others;
          It is interesting to note that the Court itself prepared a classification of the relevance
of article 8 to the dismissal cases. In Denisov v. Ukraine56 the Grand Chamber established
two ways in which a private-life issue would usually arise in such a dispute concerning
dismissal: either because of the underlying reasons for the impugned measure (it was called
“reason-based approach”) and because of the consequences for private life (“consequence-
based approach”).
    Below the main features of the two aforementioned ways will be described in finer details
with all relevant ECtHR decisions analysed, and their effect in national law will be traced and
illustrated.


3.1. ‘Preceding Link’: when Peculiarities of an Employee’s Private Life are used as a
Reason for the Dismissal.

   In Denisov v. Ukraine the ECtHR stated that complaints concerning the exercise of
professional functions have been found to fall within the ambit of “private life” when factors
relating to private life were regarded as qualifying criteria for the function in question and
when the impugned measure was based on reasons encroaching upon the individual’s
freedom of choice in the sphere of private life57. Thus, the underlying reasons for the




55 Twain, M., The Adventures of Tom Sawyer-Literary Touchstone Edition, 2005, 39.
56 ECtHR - 76639/11 Denisov v. Ukraine GC, (25 September 2018).
57 ECtHR, Denisov v. Ukraine, para. 103.


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dismissal may be linked to the individual’s private life and these reasons themselves may
render Article 8 applicable58.
         In the opinion of the ECtHR59 Article 8(2) imposes upon national authorities and
courts the obligation to balance fairly the rights or freedoms concerned in the employment
dispute. The ECtHR finds in favour of the State and confirms no violation of Article 8 in
both court decisions and national law when it establishes that national courts proved that fair
balance between the employee’s right under the ECHR and the employer’s interests had been
attained60. In contract, the violation of Article 8 is found in cases where national courts did
not take into account the consequences of a disciplinary dismissal in the applicant’s private
life61.
    In the majority of cases concerning unfair dismissal the ECtHR assesses the fairness of
the dismissal through the analyses of the availability of less restrictive sanctions at the
employer’s disposal, as well as their reasonableness, feasibility and applicability. The ECtHR
takes into account all particular circumstances of the employee’s situation and urges national
courts and authorities to adopt the same approach. However, the result is not always easily
predictable.
    For example, in cases concerning employees of religious organizations, as in Schüth v.
Germany and Obst v. Germany, the ECtHR required national courts to assess the breach of
employee’s duty of loyalty with regard to the nature of the post in question and to properly
balance the interests involved in accordance with the principle of proportionality62. It pointed
out that the State had a positive obligation to ensure the respect for private life fairly
balancing it with the church’s autonomy in considering the employment dispute, and that
“…a more detailed examination was required when weighing the competing rights and
interests at stake”63. The decision in Schüth inspired the international academic community to
publish their viewpoint on how factors affecting the balance between all interests involved
in such cases may look like64.
    In contrast to dismissals of private employees, applications submitted by civil servants
about unfair dismissals are considered in a deeper way as the ECtHR revises the grounds and
the procedure of dismissal in the light of a fair balance between the state’s full compliance
with its negative obligations under Article 8(2), its interests as an employer and the

58 Ibid, para. 106.
59 ECtHR demonstrated many times that it believes this obligation to be a part of the interpretation of the idea
of “interference by a public authority with the exercise of this right… necessary in a democratic society” which
is established in article 8(2) as legitimate (though not specifically in regard to unfair dismissal cases). – See f.i.
Open Door and Dublin Well Woman v. Ireland - 14234/88 14235/88 - Chamber Judgment (1992) ECHR 68;
Odièvre v. France - 42326/98 (2003) ECHR, para. 40; Evans v. the United Kingdom - 6339/05 (2007) ECHR
265, etc.
60 ECtHR, Knauth v. Germany - 41111/98 (2001) Inadmissible.
61 See, for example, ECtHR, Ihsan Ay v. Turkey (34288/04) 21/01/2014, where the applicant, a teacher, was

dismissed when the employer’s investigation revealed an erased criminal conviction.
62 ECtHR, Schüth v. Germany - 1620/03 (2010), para. 69; ECtHR, Obst v. Germany - 425/03 (2010).
63 Ibid., para. 66-69.
64 Some examples of factors that may affect the balance between all interests involved in such cases can be

found in: Durham C., Kirkham D., European Court of Human Rights Issues Rulings in Church Employment Cases, in
Strasbourg          Consortium,         2010.        Available          at        the        following          link:
https://www.strasbourgconsortium.org/index.php?pageId=14&linkId=306&contentId=2390&blurbId=104
4 (last access 20 august 2019).

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employee’s rights under the ECHR. In such cases there is also a closer link between the law
and practice because of the public nature of the employer, allowing the ECtHR judgement
affect national situations more directly and promptly in many countries.
    For example, before 2010 the Turkish legislation did not provide any options to review
the decisions of revocation of judges made by the National Legal Service Council. In Özpınar
v. Turkey65 the ECtHR found that in the disciplinary procedure the applicant - a judge who
was removed from the office for reasons partly related to her private life - was not given any
protection against arbitrariness as required by Article 8 of the ECHR. This judgment had a
significant impact on procedural rights of public employees: Turkey has amended certain
provisions of the Constitution, providing the judicial review of decisions issued in
disciplinary proceedings66.
    Other examples are the cases of Lustig-Prean and Beckett v. United Kingdom67 and of Smith
and Grady v. UK68 where the applicants were dismissed based on the results of an investigation
which included detailed interviews on their sexual orientation, sexual practices and even
searches of the second applicant’s locker. The investigation process was found to be of “an
exceptionally intrusive character” incompatible with Article 8 of the ECHR. The impact of
the dismissal on the right guaranteed by Article 8 was also considered. In response to these
judgements the British government announced it would lift its ban on LGB military
personnel, and, within just a month, in January 2000 it had done so69. These judgments also
influenced German employment regulation, where new provisions were drafted including
protection from discrimination on the basis of sexual orientation70.
    At the same time, we shall not judge the entire situation with the influence of the ECtHR
decisions in the UK by the two aforementioned cases, at least not more than their actual
merits imply. Generally, the impact of ECtHR case law on the consideration of employment
disputes in the UK is an interesting and quite specific example.
    According to section 4 of the Human Rights Act, if a UK court finds that some legislative
provision is incompatible with the ECHR, it is neither required nor allowed to override it.
Instead, it issues a “declaration of incompatibility” which is actually a statement with no legal
effect. It does not change the “validity, continuing operation or enforcement of the provision
in respect of which it is given” and “is not binding on the parties to the proceedings in which
it is made”.
    The Employment Appeal Tribunal (EAT) judging the fairness of the dismissal stated that
public authority employer will not act reasonably under the Employment Rights Act 1996



65 Özpınar v. Turkey, (66).
66 See Action report of Turkey (updated as of 4 April 2017) for Arzu ÖZPINAR v. Turkey (20999/04). The
judgment of 19 October 2010, final on 19 January 2011. Available at: http://hudoc.exec.coe.int/eng?i=DH-
DD(2017)73E (accessed 20 August 2019).
67 Lustig-Prean and Beckett v. UK., (8) para. 86, 98.
68 ECtHR, Smith and Grady v. UK (1999) 33985/96, 33986/96.
69 Kavey M. The public faces of privacy: rewriting Lustig-Prean and Beckett v. United Kingdom, in Brems E. (ed.), Diversity

and European Human Rights: Rewriting Judgments of the ECHR., 2013, 297.
70 Oxford University, The Legal Treatment of Homosexuals in the Armed Forces of Europe, in Oxford University Public

Interest Law Submission, 1-19.

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section 98(4) if it violates its employee's Convention Rights, such as the right to privacy71. In
the famous case Pay v Lancashire Probation Service72 both Employment Tribunal and EAT
considered the dismissal of a probation officer closely engaged with the BDSM activities in
the light of his ECHR rights to respect for private life and to freedom of expression. The
EAT stated that the words "reasonably or unreasonably" in Section 98(4) of the Employment
Rights Act should be interpreted by courts as including "having regard to the Applicant's
Convention Rights" and considered the case in light of Article 8. The consideration, however,
was too brief. The EAT upheld the Tribunal’s conclusion that Article 8 was not engaged
because the Applicant's activities had been public.
   On one hand, these decisions of the ET and EAT were valued for the incorporation of
the ECHR approach to the fairness of dismissal test into the UK law73. However, on the
other hand they brought about much discussion on a number of aspects, such as (a) no
regard of the particularities of employment relation that may affect the interpretation of the
right to privacy74; (b) misconceived understanding of the right to private life established by
the Article 8 of the ECHR as a right to act exclusively in spatial isolation75; (c) validity of the
courts’ decision to apply broad reasonableness test to the employer’s interference with a right
instead of stricter test of proportionality normally used in connection with the application of
the ECHR rights76.
   The ECtHR considered the case Pay v UK77 in 2008 and, in contrast with British courts,
adopted a different approach having found that conduct occurring outside a purely private
place could still fall within the protection of Article 8 as 'private life'. This conclusion was
due to the fact that the performances in question took place in a nightclub which was likely
to be frequented only by like-minded people and that the published photographs were
anonymised. Therefore, the approach of the ECtHR to the consideration of the limits of
private life in the context of unfair dismissals is wider and more in favour of the employee.
   Even though British courts retain the right not to be bound by the ECtHR judgements
the reference in any similar cases to the logics of the ECtHR in domestic proceedings might
provide the applicants with additional arguments. UK judges, however, are less optimistic.
They express concerns that ‘…“Human Rights” points rarely add anything much to the
numerous detailed and valuable employment rights conferred on workers' 78 and that




71  Pay v Lancashire Probation Service (2003) All ER (D) 468 (Oct), para. 32. However, the employer’s
interference with the right to privacy under article 8 of the ECHR was considered justified.
72 Ibid.
73 Vickers L., Unfair Dismissal and Human Rights in Industrial Law Journal. Vol. 33, 2004, 52.
74 Collins H., The Protection of Civil Liberties in the Workplace, in Modern Law Review, 69, 2006, 619.
75 Mantouvalou V., Human Rights and Unfair Dismissal: Private Acts in Public Spaces’, in Modern Law Review,

71, 2008, 912.
76 Mantouvalou V., Private life and Dismissal: P. v. UK in Industrial Law Journal, 38, 2009, 133-138.
77 ECtHR, Pay v UK (32792/05) inadmissible 16 September 2008.
78 Mummery LJ in: Leach v Ofcom (2012) IRLR 839, CA.


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‘Strasbourg jurisprudence adopts a light touch when reviewing human rights in the context
of the employment relationship’79.


4.2. ‘Ensuing Link’: when the Dismissal Brings about Consequences that affect the
Dismissed Person’s Right to establish and Develop Relationships with Others.

    For the first time ECtHR explicitly referred to the right for respect of private life in cases
on unfair dismissal in the middle 2000-s. Thus, in Rainys and Gasparavicius v. Lithuania80 and
Sidabras and Dziautas v Lithuania81 applicants having had the status of “former KGB officers”,
impugned the dismissals and the ban on employment in the private sphere as violating their
right under articles 8 and 14 of the ECHR. The ECtHR found that the dismissal and the ban
on employment had affected directly the applicants' right to respect for private life82 and
further found the violation of article 14 in conjunction with Article 8. This is the first explicit
reference to the right for respect of private life in this category of cases of unfair dismissal.
It paved the way for the appeal of unfair dismissals under the provisions of the ECHR and
the reference to Article 8 is now usual practice83 in such applications.
    In the next decade the ECtHR turned to a much wider approach to employee’s right
under Article 8 and for the first time in its practice required the state (as an employer) to
ensure the reinstatement of its unfairly dismissed employee. The first case of this kind was
Oleksandr Volkov v. Ukraine84, where the applicant, - a judge of the Ukrainian Supreme Court,
- had been dismissed for the “breach of oath”.
    The ECtHR did consider dismissal from the office to constitute interference with the
right to respect for private life (as it did in Özpınar v. Turkey) and found that it was not
compatible with domestic law. However, this time ECtHR went even much further
discovering that “the applicable domestic law itself failed to satisfy the requirements of
foreseeability and provision of appropriate protection against arbitrariness”85.
    As a result of this judgement, Ukraine not only reinstated the applicant in 201586, but also
introduced impressive measures to improve the legal framework for judicial discipline.
    The remedy required from the State in this case is evidently revolutionary. On one hand,
the possibility of such a prescription might render the protection of the rights of unfairly




79 Elias LJ in: Turner v East Midlands Trains (2013) IRLR 114, CA.
80 ECHR - 70665/01; 74345/01 Rainys and Gasparavicius v. Lithuania, (2005), 226.
81 ECHR - 50421/08 56213/08 - Chamber Judgment, Sidabras and Dziautas v. Lithuania, (2015), 603.
82 Rainys and Gasparavicius v. Lithuania, op.cit., paras. 35.
83 ECHR - 26652/02 Žičkus v. Lithuania, (2009), 562; ECHR - 1542/13 Beçaj v. Albania, (2014), inadmissible;

ECHR - 43519/07 (Judgment (Merits and Just Satisfaction): Court (Third Section), Milojević and others v.
Serbia, (2016), 32.
84 Oleksandr Volkov v. Ukraine, (45).
85 Oleksandr Volkov v. Ukraine, (45), para. 186.
86     See     information     on    the     official      site of the  Ukrainian      Supreme     Court,
http://www.scourt.gov.ua/clients/vsu/vsuen.nsf/(documents)/40758947BA3FE9EAC2257DE00054D6B5?
OpenDocument&year=2015&month=02&, (last access 20 April 2019).

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dismissed applicants more efficient. On the other hand, it creates doubt as to whether the
ECtHR remained within its subsidiary role as an international body.
   The wide interpretation of article 8 as covering any case of unfair dismissal is, however,
hardly possible. In the recent judgment the Grand Chamber has formulates “the borders” of
such application. It said that where the applicant argues that the right to establish relations
with others was violated as a result of unfair dismissal such violation should attain a certain
threshold of severity. It is for the applicant to show convincingly that the threshold was
attained in his or her case. The Court will only accept that Article 8 is applicable where these
consequences are very serious and affect his or her private life to a very significant degree.
In particular, the Court said, an applicant’s suffering has to be assessed by comparing his or
her life before and after the measure in question, subjective perceptions claimed by the
applicant against the background of the objective circumstances existing in the particular
case should be assessed as well. It underlined that such analysis would have to cover both
the material and the non-material impact of the alleged measure and the allegations must be
sufficiently raised before the domestic authorities87.
     Evidently this stance of the Court is the reaction upon the growing number of cases
where applicants consider that any unfair dismissal leads to the violation of the article 8.


5. Conclusions.

    The research of the ECtHR’s jurisprudence under Article 8 demonstrates that the
Strasbourg bodies significantly contributed to national employment regulation establishing
the standards of employees’ privacy protection, acknowledging a link between private life
and employment and stating that unfair dismissal might violate the right to respect for private
life. This acknowledgment, as noticed by scholars, “can shield an individual employee against
employer domination”, a possibility that was absent in countries such as the United Kingdom
before its incorporation of the ECHR88.
    We have highlighted the factual and potential impact of Article 8 on national employment
regulation and demonstrated that human rights are, as Sir Bob Hepple once wrote “important
ideological weapons in the development of labour law”89 and that they are also practical tools
in the legal practice. ideological weapons in the development of labour law”90 and that they
are also practical tools in the legal practice.


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Copyright © Elena Sychenko – Daria Chernyaeva. 2019. This article is released under a
Creative Commons Attribution 4.0 International License.




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