The European Court has reaffirmed that employers can read private emails and chat messages sent by employees.
The ruling has caused a media panic that employers can now ‘snoop’ on their employees, although this is far from the case. Furthermore, given previous UK Employment Tribunals, very little has actually changed.
Regardless, with the case generating so much attention you may wish to know where you stand. This guide will tell you what you need to know about monitoring employees in the workplace.
An Employee’s Right to Privacy
The case in question concerned an employee who was dismissed for sending personal messages from work equipment. The employee had used a personal Yahoo account to contact his brother and his girlfriend during working hours. At this point it’s important to note that the employer’s policy stated that personal use of work systems was completely forbidden.
The employer discovered this usage and alleged that the employee had breached company policy. The employee claimed that the messages were purely professional, but the employer revealed that they had read the messages and knew that this was not true. The employee was subsequently dismissed.
The employee claimed that his dismissal was unfair as the employer had breached his right to respect for his private life. However, the European Court ultimately ruled that the employer had followed policy and had acted within their rights. The court found that it was a proportionate step for the employer to access the employee’s records because they did not access any other information stored on the computer. Further to this, the employee had received prior warning that the company had the right to check his messages.
So what does this mean for your business?
This case was more of a stress test for existing legislation than an actual change. Previous Employment Tribunals have found that where an employer has a clear policy, of which the employee is aware, and which permits them to monitor employees’ use of company systems, then dismissal for misuse of the system is fair.
However, you can only access an employee’s private email or web messenger account when they have been accessed via company equipment. The Information Commissioner’s Office guidance states that:
- Employers should undertake a risk assessment before monitoring
- The monitoring must be justified and proportionate
- Employees should be notified that monitoring is taking place
- In certain cases, consent may be required
Our standard workplace policies cover different aspects of monitoring employees in the workplace. We’ve reproduced the relevant areas for you here:
Computer Usage Policy
“The Company reserves the right to monitor and maintain logs of computer usage and inspect any and all files stored on its network, servers, computers, associated technology, etc. in order to ensure compliance with this policy as well as relevant legislation.”
“Any use that is, in the view of the Company considered ‘improper’ either in terms of the content or the amount of time devoted to ‘improper use’ may be the subject of disciplinary proceedings.”
Email Usage Policy
“The Company reserves the right to monitor, at any time, all e-mails, including deleted emails, and the systems upon which such emails are stored and circulated. This right is reserved solely for the purposes of monitoring communications relevant to the Company’s business.”
“While an email that is clearly private does not fall within the definition of a communication that is relevant to the Company’s business, we maintain a right to monitor and examine such a communication where there is a reasonable suspicion that the content breaches Company policy or where there are grounds for suspecting criminal activity or equivalent malpractice.”
Internet Usage Policy
“The Company have software and systems in place that can monitor and record all Internet Usage. Use of the Internet facility is monitored and a daily log is kept of all activity. These detail the names of all web-sites accessed, along with the date and time of access, by individual users.”
“The Company reserves the right to inspect any and all files stored on its computer system in order to assure compliance with this policy. We also reserve the right to monitor the types of sites being accessed and the extent and frequency of use of the Internet at any time, both inside and outside of working hours to ensure that the system is not being abused and to protect the Company from potential damage or disrepute.”
We recommend that you review your existing policies in light of this ruling to ensure that they are compliant with how you intend to use them. If you have concerns about how this ruling may apply to your workplace, please give HR Solutions a call.