A human rights case caught the eye of many reporters last year amid claims that it allowed employers to carry out unlimited monitoring of employees without breach the right to privacy. The European Court of Human Rights (ECtHR) has now reached a final judgment on this issue.
In the case, a Romanian employer asked their employee to set up a Yahoo email account to send work emails. He was then dismissed when his employer checked the messages sent through the account and discovered that the employee was sending personal messages to his brother and fiancée during working times.
The employee claimed that this breached his right to respect for private and family life under article 8 of the European Convention on Human Rights. The ECtHR originally ruled that it was reasonable for employers to check whether staff were carrying out work during working hours, therefore, his right to privacy was not breached.
The Grand Chamber, however, has found that the employer had not struck a fair balance between the employee’s right to privacy and the employer’s right to ensure their business was running efficiently. Therefore, on the facts, the employee’s right to privacy had been breached by the accessing and monitoring of his emails.
This case is applicable in the UK as judges are bound to consider decisions of the ECtHR when ruling on similar cases. The decision does not mean that employers cannot monitor employee communications when they suspect the employee is using these for personal reasons during working hours. Instead, it means employers will have to tread carefully to ensure the right to privacy is not being breached. Amongst other considerations, this will require the employer to:
- Ensure they have a fair and legitimate reason to monitor employee communications;
- Inform employees, in advance, that monitoring will take place. This can include advising them how, when and what communications will be monitored and should ensure that employees are told of the consequences if the monitoring finds any misconduct;
- Have a monitoring policy, or monitoring clauses in email, internet, mobile phone etc policies, and ensure this is communicated to all staff;
- Review whether a less intrusive method can be used. For example, can the employee be spoken to about this issue before accessing their accounts?
There is previous domestic case law which ruled that secret monitoring of employee calls, emails and internet usage is a breach of the right to privacy and this latest case reiterates that employers have to strike the right balance to ensure monitoring is lawful.
