Can Employers monitor Employee’s personal messages

Recently the European Court of Human Rights (“ECHR”) held in a Romanian case that although accessing an employee’s personal messages on a work computer and using this to justify the dismissal of that employee for breach of the employer’s rules on computer usage engaged the employee’s right to respect for a private life, family and correspondence under Article 8 of the European Convention on Human Rights, that there was no violation of Article 8 in this particular case. Despite newspaper coverage to the contrary, the case does not mean that employers have carte blanche to monitor employees’ telephone calls, texts and emails etc at work. Monitoring may be lawful but only in certain limited circumstances.

The facts of the Romanian case

The employee was an engineer who had his Yahoo messenger service communications monitored by his employer. His employer had asked him to use the service for work purposes only, but the employee had used it for personal messages to his family. When challenged about his usage of the service, the employee denied any personal use which resulted in his employer producing a 45 page transcript of communications which did show that some were of a personal nature. As a result the employer sacked the employee and the employee claimed a violation of his right to respect for his correspondence under Article 8.

The decision of the ECHR

The ECHR held that although Article 8 had been engaged, it had not been violated, and differentiated the case from previous decisions involving UK cases of Halford and Copland. In Halford and Copland the personal use of an office telephone was allowed or at the very least tolerated. In the Romanian case personal use by staff of the employer’s computers etc was strictly prohibited.

The ECHR also noted the following:-

(i) The scope of the monitoring was limited to the framework of disciplinary proceedings;

(ii) The employer’s decision to dismiss was not based on the content of the messages, but purely on the fact that the employee had used the employer’s computers for personal use;

(iii)It is not unreasonable for an employer to want to verify that its staff are completing their professional tasks during working hours;

(iv)The Yahoo messenger account was examined, but not other data and documents stored on the computer so that the employer’s monitoring was limited in scope and proportionate; and

(v) The employee had not convincingly explained why he had used the Yahoo messenger account for personal use.

Hence on balance between the employer’s and employee’s rights, it was fair for the employer to monitor the employee as it had done (and to dismiss).

Conclusions

Daven Naghen head of our employment team has commented as follows:-

“This case does not give employer’s carte blanche to monitor staff usage of its IT and communications systems. If an employer is going to be able to do this lawfully then the employer will need a clear and well drafted policy setting out the ground rules and will need to bring this to its staff’s attention prior to any monitoring taking place.

For example if the policy clearly states that no personal usage is allowed, or only within certain limited parameters, then the monitoring of the IT and computer systems to check compliance with the policy may be lawful provided it is limited in scope, e.g. within a disciplinary content.

The policy should clearly state under what circumstances IT and computer systems may be monitored and also the consequences for any breach of the policy.

Without such a policy the monitoring of an employee’s usage of the employer’s IT and communications systems is still likely to be a breach of Article 8.”

If you need any advice or guidance on this subject, either as an employer or as an employee, then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or arrange an appointment or visit our offices at 23 New Road, Spalding, Lincolnshire, PE11 1DH.