January 27, 2016

Is it okay to monitor your employees’ messages?

Employment law rarely makes front page news.

However, a recent decision by the European Court of Human Rights (ECtHR) made the global press, with headlines suggesting that employers are now allowed to monitor employees’ personal emails and private messages.

The ECtHR made the ruling on a case involving a Romanian engineer who was fired after using Yahoo Messenger, not only to communicate with professional contacts, but also to send messages to his fiancée and brother.

However, contrary to the headlines, the decision of Barbulescu v Romania does not quite give employers the green light to snoop on their staff.

Rather, it follows established principles on individuals’ rights to privacy in the employment context, with the decision acting as reminder of the need for well-drafted policies to allow the monitoring and review of employees’ personal use of company IT systems.

What happened in the case?

The case originated in Romania. A Mr Barbelescu had, on the instructions of his employer, opened a Yahoo Messenger account to deal with customer inquiries about company products. The employer monitored the account to ensure that customers’ inquiries were being dealt with.

The employer had a strict policy forbidding personal use of company systems.

The routine monitoring of the Messenger account revealed that Barbelescu had been using it for personal messages. The allegation was put to Barbelescu, who denied it.

He was disciplined and shown the evidence which was 45 pages of personal messages during an 8 day period. He was dismissed for breach of the policy.

The matter eventually reached the European Court of Human Rights where Barbelescu argued that the employer had breached his right to privacy under Article 8 of the European Convention on Human Rights.

The decision

The court decided that the monitoring of the Messenger account had been reasonable and proportionate.

The employer had a reasonable expectation that the account would be used for work related messages and it monitored to ensure that customer inquiries were being properly dealt with.

It had a clear policy that the employee had breached in using the Messenger account for private use during working hours. The employer had relied only on the messenger account and did not search other data and communications on the computer. The monitoring was limited in scope and proportionate.

What should I do as an employer?

The lesson that needs to be taken from this decision is the need for a clear IT and Communications policy.  It should clearly state the conduct and standards expected of employees and clearly explain when and why monitoring may take place. Monitoring can be justified if it is reasonable in the circumstances.

If you do not have such a policy or have concerns about the policy you should contact Moorepay’s advice line for guidance and advice.

If you would like more advice on this subject, you can contact us. Remember to keep up to date with all the latest employment law changes with our handy legislation guide.

By Peter Redman

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