El Tribunal Europeo de Derechos Humanos ha resuelto en fecha de hoy sobre la legalidad de despedir a los empleados en base al contenido de determinados correos intercambiados en el lugar de trabajo si para ello usa los medios que la empresa pone a su disposición siempre que haya sido oportunamente preavisado.
El despido del trabajador que acude al TEDH tiene como causa el haberse vulnerado por el empleado el reglamento interno de la empresa, este prohíbe el empleo de medios o recursos de la empresa con fines privados.
Los mensajes intercambiados en horas de trabajo trataban de temas personales. El medio empleado era el messenger que la empresa había puesto a disposición del trabajador con el fin de proporcionar información a los clientes.
El Tribunal Europeo aprovecha la ocasión para criticar el nulo respaldo que los distintos Tribunales han dado a este trabajador rumano, los que por el contrario, han confirmado su procedencia.
Critica que no se ha evaluado de manera suficiente los intereses en juego. De un lado el derecho al respeto de su vida privada, y de otro, el derecho del empresario a adoptar medidas para garantizar el buen funcionamiento de la empresa. Así como tampoco de las causas que motivaron la vigilancia de las comunicaciones.
Otras sanciones debieron barajarse frente a tales actos, intentando siempre evitarse la más grave de entre las existentes, el despido.
El empleado despedido no fue avisado del alcance de la del control empresarial sobre sus comunicaciones ni tan siquiera de la posibilidad de que la empresa leyera el contenido de los correos enviados.
Es por ello que la decisión del TEDH estima que las autoridades nacionales no protegieron adecuadamente el derecho del Sr. Bărbulescu al respeto de su vida privada y de su correspondencia y en consecuencia, no lograron un justo equilibrio entre los intereses en juego, produciéndose una violación del artículo 8 del Convenio Europeo de Derechos Humanos.
Fallo avalado por 11 votos frente a 6 de sus integrantes. Es decir, seis de los miembros del Tribunal entienden ajustado a derecho el balance entre los intereses en juego, y consideran que el empleado vulneró la confianza que la empresa depositó en aquel.
Pasamos a transcribir literalmente la decisión de Tribunal Europeo:
“Decision of the Court
The Court confirmed that Article 8 was applicable in Mr Bărbulescu’s case, concluding that his communications in the workplace had been covered by the concepts of “private life” and “correspondence”. It noted in particular that, although it was questionable whether Mr Bărbulescu could have had a reasonable expectation of privacy in view of his employer’s restrictive regulations on internet use, of which he had been informed, an employer’s instructions could not reduce prívate social life in the workplace to zero. The right to respect for private life and for the privacy of correspondence continued to exist, even if these might be restricted in so far as necessary.
While the measure complained of, namely the monitoring of Mr Bărbulescu’s communications which resulted in his dismissal, had been taken by a private company, it had been accepted by the national courts. The Court therefore considered that the complaint was to be examined from the standpoint of the State’s positive obligations.
The national authorities had been required to carry out a balancing exercise between the competing interests at stake, namely Mr Bărbulescu’s right to respect for his private life, on the one hand, and his employer’s right to take measures in order to ensure the smooth running of the company, on the other.
As to the resulting question of whether the national authorities had struck a fair balance between those interests, the Court first observed that the national courts had expressly referred to Mr Bărbulescu’s right to respect for his private life and to the applicable legal principles. Notably the Court of Appeal had made reference to the relevant European Union Directive 2 and the principles set forth in it, namely necessity, purpose specification, transparency, legitimacy, proportionality and security. The national courts had also examined whether the disciplinary proceedings had been conducted in an adversarial manner and whether Mr Bărbulescu had been given the opportunity to put forward his arguments.
However, the national courts had omitted to determine whether Mr Bărbulescu had been notified in advance of the possibility that his employer might introduce monitoring measures, and of the nature of such measures. The County Court had simply observed that employees’ attention had been drawn to the fact that, shortly before Mr Bărbulescu’s disciplinary sanction, another employee had been dismissed for using the internet, the telephone and the photocopier for personal purposes. The Court of Appeal had found that he had been warned that he should not use company resources for personal purposes.
The Court considered, following international and European standards 3, that to qualify as prior notice, the warning from an employer had to be given before the monitoring was initiated, especially where it entailed accessing the contents of employees’ communications. The Court concluded, from the material in the case file, that Mr Bărbulescu had not been informed in advance of the extent and nature of his employer’s monitoring, or the possibility that the employer might have access to the actual contents of his messages.
2 Directive 95/46/EC
3 In particular, the International Labour Office (ILO) Code of Practice on the Protection of Workers‘ Personal Data of 1997 an Recommendation CM/Rec (2015)5 of the Committee of Ministers of the Council of Europe to member States on the processing of personal data in the context of employment
As to the scope of the monitoring and the degree of intrusion into Mr Bărbulescu’s privacy, this question had not been examined by either of the national courts, even though the employer had recorded all communications of Mr Bărbulescu during the monitoring period in real time and had printed out their contents.
Nor had the national courts carried out a sufficient assessment of whether there had been legitímate reasons to justify monitoring Mr Bărbulescu’s communications. The County Court had referred, in particular, to the need to avoid the company’s IT systems being damaged or liability being incurred by the company in the event of illegal activities online. However, these examples could only be seen as theoretical, since there was no suggestion that Mr Bărbulescu had actually exposed the company to any of those risks.
Furthermore, neither of the national courts had sufficiently examined whether the aim pursued by the employer could have been achieved by less intrusive methods than accessing the contents of Mr Bărbulescu’s communications. Moreover, neither court had considered the seriousness of the consequences of the monitoring and the subsequent disciplinary proceedings, namely the fact that – being dismissed – he had received the most severe disciplinary sanction. Finally, the courts had not established at what point during the disciplinary proceedings the employer had accessed the relevant content, in particular whether he had accessed the content at the time he summoned Mr Bărbulescu to give an explanation for his use of company resources.
Having regard to those considerations, the Court concluded that the national authorities had not adequately protected Mr Bărbulescu’s right to respect for his private life and correspondence and that they had consequently failed to strike a fair balance between the interests at stake. There had therefore been a violation of Article 8.
Just satisfaction (Article 41)
The Court held that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by Mr Bărbulescu.
Judge Karakaş expressed a partly dissenting opinion.
Judges Raimondi, Dedov, Kjølbro, Mits, Mourou-Vikström and Eicke expressed a joint dissenting opinion. These opinions are annexed to the judgment”.
Es la Decisión del Tribunal Europeo –European Court of Human Rights- de fecha 5 de septiembre de 2017.
Enviar correos privados en el lugar de trabajo ¿es causa de despido?. Ver