The European Court of Human Rights (ECHR) has upheld that employers are entitled to read employees' private messages, sent either through webmail accounts or using chat software, provided that the messages were sent whilst the employees should have been at work and were sent using the employer's equipment.
The ECHR found that an employer had not infringed the human rights of an employee when it accessed the employee's chat account, as it did so on the assumption that the information held in the account related to the employee's work activities.
In this case, the employer accessed the account to determine whether or not the employee had breached a ban on sending personal messages at work. The employee was subsequently dismissed after failing to successfully challenge the legitimacy of the evidence obtained in the Romanian Courts, which proved that he was sending personal communications whilst he was at work, in breach of the employer's policy. The employee then brought the matter before the ECHR, seeking to overturn the decision and his dismissal.
The Court's decision supports the UK's Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000, which permit an employer, provided that it has met certain conditions, to access an employee's communications relating to the business, for the purposes of ascertaining compliance with the employer's rules, practices and policies.
However, the ECHR made it clear that this decision should not be taken to mean that they will support employers who undertake unfettered snooping on their workers, and recommended that employer's policies regulating such access should prevent such indiscriminate access.
Employers should ensure that all employees are made aware that any communications they send at work or using the employer's equipment may be accessed for the purposes of checking that the employee is complying with workplace policies, procedures and rules, and/or to ensure their compliance with any legal obligations imposed on the employer. This notice should be given prior to any monitoring taking place, and, in respect of any subsequent new staff, as part of their induction pack.
Contributor: Varun Shingari
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions on www.TLTsolicitors.com