The European Court of Human Rights (ECHR) has held that an employee’s right to respect for private life and correspondence is not breached where an employer monitors the employee’s personal communications at work, subject to reasonableness and proportionality. Whilst this has caused a large amount of media interest in the UK, employers should be aware that this case does not entitle employers to monitor all employee’s emails and social media sites.
In the case from the Romanian courts, an employee was using a business Yahoo messenger account (which he had set up at his employer’s request) to send and receive personal messages. This was in breach of his employment contract which imposed a complete ban on the use of the internet for personal reasons. As a result of this breach the employee was dismissed. The employee claimed in the courts that the employer’s conduct in monitoring his account had breached Article 8 of the Convention for the Protection of Human Rights (Article 8), (the right to respect for private and family life, the home and correspondence).
Whilst the ECHR accepted that Article 8 had been engaged, the majority held that the Romanian courts had balanced the employee’s right to respect for family life and correspondence with the employer’s interests. It was not unreasonable for an employer to verify that the employee was completing professional tasks during working hours. The court had used the transcript of the communications solely for the purpose of proving the disciplinary issue within the framework of the disciplinary proceedings and therefore a fair balance had been struck. The Court also took the view that the content of the communications was not a decisive element in the domestic courts findings. The dissenting judge stressed that a human rights centred approach to internet usage in the workplace warrants a transparent internal regulatory framework, a consistent implementation policy and a proportionate enforcement strategy by employers, all of which he felt were absent in this case.
In the UK, the employers right to monitor an employee’s email or internet use is governed by the Data Protection Act 1998. An employee may also be able to claim that excessive monitoring has breached the implied duty of trust and confidence which exists in addition to the potential breaches of the Human Rights Act 1998 which incorporates Article 8 into UK law. However, employers may find that they are required to monitor information to protect against harassment or discrimination claims and also transmission of confidential information and trade secrets and therefore need to balance the need to monitor with the rights of the employee.
The case shows the importance of a clear policy regarding the use and monitoring of the internet, emails and social media. Where employers allow limited personal use of the internet and email, it should be clear exactly the extent of such use and the level of monitoring which applies. For example, the UK Information Commissioner recommends that staff are encouraged to mark email messages private or personal so that when monitoring use of the email system employers will avoid opening emails marked private or personal unless there is a very good reason to do so. The case also highlights that employees must be aware of the existence of such a policy, most appropriately by ensuring that they consent to it explicitly.
Our Data Protection Report blog also reported on this case.