It is typically accepted that an employer has the right to monitor an employee’s actions during work hours and their use of work equipment, including internet, phone, email, and social network activities.
However, the reality is far different. The employer’s right to monitor such activity must be balanced against the rights of the employee and various legislation regarding the processing of personal data.
A 2016 ruling by the European Court of Human Rights (ECHR), regarding monitoring of personal correspondence by an employer, led to the understanding that an employer had carte blanche to monitor an employee’s E-Mail’s even if they were of a personal nature.
The ruling given by the ECHR followed from a case which concerned a Romanian employee who was dismissed for using a Yahoo Messaging account to send private messages to his brother and his fiancée. Some of these messages were intimate in nature. The employee claimed that his Right to Privacy under Article 8 of the European Convention on Human Rights had been breached by his employer as they had accessed his personal as well as professional messages.
The ECHR found that the employer had not breached the employee’s rights as the employee could not reasonably expect a right to privacy as his employer was entitled to check his message log to confirm that he had been carrying out his duties. The ECHR stated that it was “not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours”. Additionally, the ECHR found that the employer had not breached the employee’s privacy as they had not accessed any other data or documents on the his computer.
The ruling was considered in line with UK law and previous cases that had been heard by the Courts.
The employee appealed against the decision, and the case was heard by the ECHR Grand Chamber earlier this month.
In a somewhat surprising turn of events, the Grand Chamber ruled in favour of the employee in that his Right to Privacy had been breached. The Judges concluded that the employee had not been informed expressly that his employer may gain access to the contents of his messages in the course of their monitoring.
The Grand Chamber directed that it is not acceptable for an employer to reduce an employee’s privacy to zero, however, they accepted that an employer still retains the right to monitor their employee’s activities provided certain conditions are met. The ruling states that an employer should ensure that they make it clear to all employees who may be monitored of the extent of the monitoring, and that it is incumbent on the employer to show that the monitoring took place to achieve a legitimate aim. Indiscriminate monitoring would not be tolerated if the employee could not justify in doing so.
The extent of this ruling to in the UK is limited as this area is heavily regulated by the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000. The Information Commissioner also issued their Employment Practices Code, which recommends that employers carry out impact assessments to show that they have struck the right balance between protecting the rights of the employee and the interests of the business.
If you have been affected by your employer’s monitoring at work and would like to discuss your rights in this regard further, please don’t hesitate to contact our Expert team today.
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