Thursday, January 14, 2016

Your Employer Is Watching You

There has been a lot of media publicity in the last day or so about a Judgment of the European Court of Human Rights confirming that an employee's human rights were not breached when his employer accessed his personal messages on their electronic systems.

In fact this decision will not have come as any great surprise to employment lawyers in the UK.

The Romanian gentleman in question complained that the Court in his home country should not have admitted evidence about the personal messages when ruling on whether he should have been dismissed by his employer because of them. This was on the basis that the employer accessing the messages was a breach of his right to privacy.

The ECHR found that the right to privacy was engaged but had not in fact been breached in this case as the actions of the employer were a proportionate interference in those rights. An employer has a legitimate interest in, amongst other things, ensuring that an employee is working during working time.

The decision was influenced by the fact that the employer was relying on the existence of the messages rather than the details of their contents. It was also relevant that the employer had accidentally come across them rather than seeking them out.

This fits in with the general approach that an Employment Tribunal would be likely to adopt in this country.

The Judgment should not be regarded as giving employers carte blanche to review intimate personal details of an employee. An employer would not, for example, in all likelihood, be entitled to insist on seeing details which were on the employee's own electronic device (although they could still discipline an employee for spending time on it when he or she was supposed to be working.)

To try and avoid disputes about this employers are well advised to have clear written Policies which explicitly forbid personal use of company electronic equipment and which state that the employer has the right to monitor all communications using such devices.