New ruling on monitoring employees’ messages at work serves as an important reminder for employers

According to a recent decision from the European Court of Human Rights (ECHR), an employer can monitor an employees’ private messages at work.

This case involved an individual engaged as an engineer in Romania who had used a business Yahoo Messenger account, not only in a professional capacity but also to send personal messages to relatives. Having become aware of the personal communications sent from the business messenger account, the employer dismissed the individual. He subsequently argued that Article 8 of the Human Rights Act 1998 (the right to respect for private life and correspondence) had been breached by the company. However, this argument was dismissed by domestic courts as well as the ECHR who held that the employer was within their rights to monitor the employees’ private messages.

Lisa Outram, Solicitor in the Employment team at The Wilkes Partnership, comments: “It is important to be mindful of the specific facts of this case and to not take this ruling out of context. In particular, the device used to send the private messages was owned by the company, the employer had adopted a clear policy stating that the internet was only permitted to be used for business purposes and the employee had received prior warning that his messages may be checked.”

“The ECHR also attached relevance to the fact that the content of the employee’s personal messages was not disclosed by the domestic courts. Furthermore, the employer had a genuine justification for monitoring the messages and isolated their review to the messaging account rather than accessing other information stored on the employee’s computer. In the circumstances, it was held that the employer had acted proportionately in the circumstances which is an existing key principle when determining whether monitoring can be justified. Accordingly, this ruling doesn’t change existing law but is a useful restatement of existing legal principles applicable in this area.”

Lisa Outram continues:

“The outcome of the above recent ruling from the ECHR serves as a reminder for employers to ensure that they have suitable policies in place outlining the standards which must be observed by employees, the right of the company to monitor use of their IT systems and the likely outcome for employees if the policies are breached. In order that the employer can protect its position as far as possible, such policies should be clearly communicated to employees and kept under review on a regular basis. Any monitoring carried out by employers should only be undertaken if it is proportionate to do so and, wherever possible, employers may wish to obtain employees’ express consent beforehand.”

If you would like to discuss any issue or query arising from this update please contact Lisa Outram or your usual contact in the Employment team. Alternatively email us at [email protected].