Decision: Despite the headlines, a recent decision ofthe European Courtof Human Rights (ECtHR) on workplace monitoring does notquite give employers the green lightto monitortheiremployees’ personal emails and private messages.
In this case, the employer asked an employee to setup a Yahoo Messenger account for business purposes. During a period of monitoring this account, the employer uncovered personal use of the accountin breach of company regulations which expressly prohibited the use of company computers for personal purposes. Although the employee denied using the accountfor personal purposes, during a disciplinary process, he was presented with a 45-page transcriptof communications which included exchanges with family on personal matters. He was dismissed. Whilstthe ECtHR accepted thatthere had been an interference with the employee’s “private life” and “correspondence” within the meaning of Article 8 of the European Convention on Human Rights, it concluded thatthere had been no violation of the Article since his employer’s monitoring had been limited in scope and was proportionate in the circumstances. Itwas notunreasonable for an employer to wantto verify that its employees are completing their professional tasks during working hours.
Impact: This case is unlikely to have far-reaching implications for the UK and, contrary to some reports, it does notseta precedent for employers to monitor, carte blanche, employees’ private messages on social media or other messaging forums.
The level of workplace monitoring that an employer can legitimately carry out is restricted by the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000. The Information Commissioner’s Employment Practices Code also includes guidance and good practice recommendations on the monitoring of electronic communications.
Employers shouldensure thatemployees are aware ofany ITmonitoringthatthey carryoutandmakeclearwhetherpersonaluseofcompanyequipmentisallowed. This shouldallbesetoutinapolicy, linkedtothedisciplinarypolicyif required. Any suchpolicyshould betransparentand implemented consistently, and monitoring shouldbelimitedtothatwhichisproportionate. Withaclearpolicyinplace, the legitimacyofanemployer’s actionswillthendependonwhetheritstrikesafair balancebetweentheemployee’s righttoprivacyandtheemployer’s righttoprotect its businessandenforce its rules as regards how employees behaveatwork.
Our article on this case was published recently in HR Magazine.
Bărbulescu v Romania 61496/08  ECHR 61