News & Views

Snooping rights for employers? Don’t believe everything you read online…

HK
BY Heather Kemmett
Employment law
BG Purple

There’s been much hype about the recent EU ruling on whether or not companies can monitor workers’ private messages. The bottom line is that this ruling doesn’t tell us anything that we didn’t already know; if an employee is accessing emails, messages or social media accounts on company equipment, they cannot always expect privacy.

There’s been much hype about the recent EU ruling on whether or not companies can monitor workers’ private messages. The bottom line is that this ruling doesn’t tell us anything that we didn’t already know; if an employee is accessing emails, messages or social media accounts on company equipment, they cannot always expect privacy.

However, employers need to act reasonably if they want to monitor employees’ computer habits.

In this case, the messaging account the employee was using to send the “private” messages was a work account; he had been instructed to set it up by his employer in order to deal with client communications. The employer also had a rule in place which said that employees were not allowed to use computer equipment for personal reasons. When the employee used the account to send personal messages in breach of the rules, he was dismissed. 

When this employee’s claims failed in his home country of Romania, he took his case to the European Court of Human Rights (ECtHR). The ECtHR is not a court where private disputes can be aired. Instead, the Court is asked to judge whether a country’s laws and legal system has failed to protect individuals’ rights under the European Convention on Human Rights. In this case, the ECtHR had to determine whether Romania (ie. the Romanian legal system) had failed to protect the employee’s convention rights by allowing his employer to fairly dismiss him. He argued that his rights under Article 8, the right to respect for private and family life, home and correspondence, had been breached. 

The Court found that the Romanian justice system had been right to uphold the finding that the employer had acted reasonably. As ever, the devil was in the detail; the employee was using a work account on work systems and the employer had clear rules in place about what employees were permitted to do. It was therefore difficult to see how it had treated the employee unfairly. If the employer had looked at messages on a wholly private account accessed outwith work hours and did NOT have a policy in place, perhaps the outcome would have been very different. In those circumstances a ruling which said that there was no convention breach really would have been ground-breaking.

As it is, reports suggesting that employers now have carte blanche to read private messages should be taken with a bucket-load of salt. They do not. Employers still need to ensure that they are behaving reasonably and fairly towards employees. The best way to make sure employers are protected is to have clear policies in place dealing with use of work equipment (whether that be phones, computers, tablets or mobiles) and to make sure that employees know what is expected of them when using the equipment, whether in work time or not. 

If you are a LAW client, you can find example policies in our Client Area, or get in touch with your Legal Manager to find out more.

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