Is the right to respect for private life and correspondence breached if employers monitor employees’ personal communications at work? This was the question facing the European Court of Human Rights (ECHR) in a recent case brought by a Romanian employee following his dismissal.

The ECHR ruled that subject to reasonableness and proportionality that employers have every right to check if employees are actually carrying out the function for which they are employed. In this case the employee had a Yahoo Messenger account which was used for business purposes, but he also used it to send and receive private messages to his brother and his fiancée. The employer stumbled across the private messages when they went into the business account for legitimate business reasons. The ECHR said this was perfectly acceptable and was not in breach of any human right to privacy.

Employers are not allowed to just go on a fishing trip and routinely check employees’ personal messages, there has to be a reasonable reason to do so. The rationale from the court ruling appears to be:

  • If an employee is in work and is paid to work an employer has the right to check that the employee is in fact doing what they are paid to do.
  • If during this checking process they establish that the employee is not doing what they are contracted to do, for example they may be using social media, which may also be contrary to a company IT policy, then the employer will not be in breach of privacy rules if during the verification of the “lack of work” or “breach of company policy” they read the employee’s private messages.

There appears to be some room for interpretation in the judgement.  For example there cannot be “unfettered snooping”, there must be clear and communicated policies.

In the case in question the employee used company IT equipment/infrastructure. Clearly using a company laptop or PC for private matters during offices hours is difficult to defend and in breach of most company policies. It would have been interesting to see what the judgement would have been if it was a personal phone but a company WIFI network? That said if the messages were in a public chatroom and timed during working hours the employee is clearly not doing what they are paid for.

It is important that employees’ are aware that their employer has the right to monitor their use of the internet and that breaching any rules relating to private usage could result in disciplinary action. Employers should therefore ensure that any policy they have on private usage, or the total ban of such usage, is communicated to their employees. Any policy on the content of personal messages on social media should also be communicated to them.

Cooke and Mason alongside Sigerson Associates have a HR service that specialises in employment law issues including employers’ rights to monitor employee’s internet usage.

For more information please visit us on http://www.sigersonassociates.co.uk/service/hrsupport or contact us on 01777 861 861 or email our HR specialist Craig Mason on craigmason@sigersonassociates.co.uk

-          Craig Mason 21/01/16


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