Charlotte Davies

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Private messages: Monitoring of employees

employmentlaw@work / 07 September 2017

ISSUE:

Overturning its own decision from earlier this year, the European Court of Human Rights (ECHR) has decided that employees have a right to respect for privacy at work and that if monitoring of emails or messages is going to take place, employees must be told about this in advance (unless exceptional reasons prevail).

Earlier this year we updated you on the case of Barbulescu v Romania, in which the ECHR decided that employers can monitor personal messages sent by employees during working hours via online accounts or devices which have been provided by the employer. Our previous update can be read here.

In summary, a Romanian engineer was dismissed after being found by his employer to be using his work Yahoo Messenger account to chat with his fiancée and brother. The employer’s policy did not permit personal use, but neither did it expressly say that communications would be monitored.  After considering the employee’s claim of a breach of Article 8 of the European Convention on Human Rights (the right to respect for private and family life), the ECHR confirmed that the employer had not acted unreasonably.

The Chamber of the ECHR has, unusually, appealed the decision to the Grand Chamber of the ECHR, and the Grand Chamber has now reversed the decision and found in favour of the employee, holding that:

“An employer’s instructions cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary.”

Accordingly, there had been a breach of Article 8 and the employee was entitled to compensation. The full judgment (which is long and detailed) is available here

KEY DATES:

The judgment was issued on 5 September 2017.

IMPACT:

This case emphasises the importance of clearly telling employees how, when, where and why their communications will be monitored in the workplace.  UK employers will still be able to justify reading private online messages sent by employees during work hours via accounts or devices provided for work purposes, as long as they have said that these will be monitored and the decision to do so is both reasonable and proportionate.

ACTION:

You may wish to consider reviewing your contracts of employment and staff policies to ensure that monitoring of communications is properly covered. Whilst disciplinary action is still very much an option for an employer faced with inappropriate use of online accounts and devices during working hours, this case serves as a useful reminder that an employee’s knowledge of monitoring is key to deciding whether an employer’s actions are reasonable.  Remember also that the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000 place important limitations on an employer’s power to monitor employees’ private communications.

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