The European Court of Human Rights (ECHR) decided that the monitoring or recording of communication by employers violated the rights of employees set out in Article 8 of the European Convention on Human Rights (ECHR). In the refusal of the protection against unfair dismissal case, the Romanian labour court has not sufficiently established whether the plaintiff had not only been informed of the checks in advance, but also specifically notified of the recording of his communication via Yahoo Messenger. It also failed to determine whether the applicant had been informed of the extent of the monitoring and the intensity of the infringement of his rights. The ECHR also criticised the Romanian court’s lack of further findings.

Companies must therefore only monitor the communication of their employees if done so proportionately. Informing the employee in advance of the possibility, nature and extent of checks is one of the conditions for such monitoring.

This judgment therefore corresponds to the current prevalent practice in Switzerland according to the guidelines of the FDPIC.

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