The much litigated issue of employers’ rights to review employees’ private communications during working hours, using company equipment, has come before the European Court of Human Rights (ECHR).
The case, originating between a Romanian worker and his employer, concerned a dismissal where the company had inadvertently discovered communications between the worker and a member of his family concerning his health and sex life. He was dismissed for using company systems for private purposes. The employee challenged this, alleging that his rights to respect for a private life and correspondence under the European Convention on Human Rights had been infringed.
The decision and its implications
The decision is somewhat fact specific. Although it cannot be said that employers have complete carte blanche to review and make use of private communications at work, the following points of guidance emerge from the case:
● Employers must clearly communicate to employees its policy on the use of company systems and equipment for private purposes and must explain whether, and if so how, this will be monitored.
● To avoid breach of the Convention, such monitoring must be reasonable and proportionate.
● It is not unreasonable for an employer to want to verify that employees are completing work related tasks while at work.
The fact that the information was discovered through monitoring designed to check work activity was significant — blanket surveillance of information which is clearly private may not be lawful and may infringe a worker’s rights to privacy under the Convention as not being reasonable or proportionate.
What does this mean for my business?
The importance of appropriate employer policies
This decision aligns with the position under UK law. Allegations of unfair or unlawful monitoring have arisen in a number of cases in the Employment tribunal and under the Lawful Business Practice Regulations. These have consistently stressed the need for employers to have a clear, well communicated policy on the use of company systems and equipment for private purposes. Employers must also make clear the circumstances in which monitoring will take place and its extent. This case is, however, a useful reminder that blanket monitoring which is not for a specific and legitimate business purpose, is not likely to be lawful, and in the context of human rights law risks infringement of the right to respect for a private life.
It is also worth noting that the position will not change even if the UK Government delivers on its manifesto commitment to repeal the Human Rights Act 1998. The UK was one of the original signatories to the Convention in 1947 and decisions of the ECHR will continue to bind UK courts for as long as we remain signatories. Secession from the Convention has been called for by some UK politicians but so far has not been stated as Government policy. To do so would make the UK the only EU member state outside the Convention and one of only two in Europe (the other being Belarus).
Effect on employee engagement
Several commentators have criticised the decision on the basis that the separation between working and leisure time has become increasingly blurred making it difficult to maintain strict barriers between what is work-related and what is personal. It has been claimed that if employees believe any communication sent during or out of working hours by means of company equipment is viewed by their employer, it will adversely impact on employee engagement and result in increasing levels of stress and alienation. Against this it might be said that employees have a clear choice – they may either use company equipment for personal communications and risk those being seen by their employer (and possibly also disciplinary action if this is the employer’s policy) or make those communications using personal equipment. Whichever view is taken, what is clear is that it is incumbent on an employer to set out company policy in this area so that all employees know the extent of monitoring that is to take place and where they stand.
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