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European Court rules employers can monitor employee’s private messages

This month the European Court of Human Rights (ECHR) made the ruling that Employers could monitor their employee’s private online communications. The decision binds all countries that have ratified the European Convention on Human Rights, and this includes the UK.

The case involved a Romanian engineer who was fired in 2007 after his company discovered he was using Yahoo Messenger to chat not only with his professional contacts but also with his fiancée and brother during working hours, which was strictly prohibited under the company’s policies.

The employee argued that his right to privacy under Article 8 of the European Convention on Human Rights had been infringed in the form of his confidential correspondence being compromised. However, the ECHR dismissed the employee’s argument and held that it was “not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours.”

By ruling in favour of the employer, the ECHR allowed transcripts of the engineer’s communications to be used against him in court, saying: “It proved that he had used the company’s computer for his own private purposes during working hours.”

However, the ECHR made it clear that this decision should not be taken to mean that it is completely acceptable for employers to carry out unfettered snooping on their worker’s private messages. It also recommended that employer’s policies regulating such access should define what information employers can collect and how.

The judgment said: “If the employer’s internet monitoring breaches the internal data protection policy or the relevant law or collective agreement, it may entitle the employee to terminate his or her employment and claim constructive dismissal, in addition to pecuniary and non-pecuniary damages.”

Conclusion

In this case, the employer had an absolute ban on using its IT resources for personal matters: when the employee denied doing so, the employer could only properly investigate by reading his emails. This is not the case for most employers as they allow for some personal email use at work so if they start snooping into their employee’s personal message they may just find themselves on the wrong side of the law.

The best piece of advice for employers is to review all their communications policies to check they include clear usage statements.

For further information on drafting communication policies, please do not hesitate to contact me for a free consultation at samira.cakali@scesolicitors.co.uk or on 01133 50 40 30.


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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