Monitoring Employees’ Private Communications

The European Court of Human Rights ruled yesterday that it is possible for employers to justify reading workers’ private online messages.

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The Court ruled that a Romanian company had been entitled to read deeply personal messages that one of its engineers had exchanged over Yahoo Messenger whilst he was supposed to be working. The employee, who had been communicating with his brother and his fiancée about ‘very intimate’ issues including his sexual health, was dismissed for breaking company rules against staff making personal use of work resources.

Infringed his right

The employee argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds it infringed his right to respect for private life and correspondence under the European Convention on Human Rights. However, the Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours.

Warning for businesses

Whilst this is a useful decision for employers, I have the following warning for businesses.

This case has been widely reported as creating a ‘snoopers charter’ for employers, allowing unrestricted access to employees’ private messages. However, this is not the case.

In fact the Court made it clear that it is not acceptable for employers to conduct unregulated monitoring of staff’s private messages, and policies must be in place to define what information employers can collect and how. Further, any such monitoring must be reasonable and proportionate.

If employers monitor internet use, emails, telephone calls or other communications without appropriate policies in place, they risk breaching UK legislation relating to electronic communications and data protection. Further, employers can incur liability for unfair dismissal, including constructive dismissal – where an employee resigns in response to a breach of contract by the employer.

Employees be aware

Clearly, this case also shows that where employers do have appropriate policies in place, private communications made using their systems can be monitored, and this can result in disciplinary action up to and including dismissal. Indeed, in certain circumstances, employers can also access private messages and data on devices belonging to employees, such as smart phones, tablets and laptop computers, where they have been used for work-related purposes.

My suggestion

An employee should not communicate anything using a system or device that their employer has notified them can be accessed, or otherwise monitored that they would not be happy communicating directly to the employer.