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Employer Snooping on Employees Private Emails - Is it Allowed?

14th Jan 2016
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In a landmark case the ECHR (European Court of Human Rights) have deemed that employers can read employees’ private messages whilst they are work.  This has implications for UK employees who use Facebook, Twitter and other social media platforms to communicate with family and friends during their working day and highlights the increasing blur between workplace privacy as working hours become longer.

The case was taken by a Romanian engineer who messaged his partner on a private messaging platform.  His employment was terminated by his employer who had a policy in place that banned staff from its employees making use of company resources for personal use.  The employer had accessed his private messages on Yahoo as he also used this medium for work-related messages.

The ECHR decision goes to the heart of the employment contract with the implied term that in exchange for wages an employee commits the whole of their time to the employment for which they are being paid.

Some legal experts have warned that even after work hours have ended an employee should not use private messaging platforms for personal use with company smartphones, tablets or laptops.

Many employees may now assume that their employer could monitor their online activities whilst in work and should seriously consider what they do in this regard, however, it is important to note that in order to undertake monitoring of online activities, a policy should be in place that clearly states that this may or will take place.  If there is no policy in an employee handbook for example, employers should now consider the need to establish this.  An existing policy should be reviewed in accordance with this development.

A statement referring to online activity monitoring including private messages should ideally be included in an IT and/or internet use policy.  An employment practices code linked to the Data Protection Act 1998 published by the Information Commission gives useful guidance on this matter.  In the light of this ruling, the Information Commission may need to review its own guidance now.

In a policy the employer should be clear about the purpose of monitoring including the nature, extent and who will be doing the monitoring.  It is a question of reasonableness and proportionality.  With larger companies it would expected that it would be done by the IT department but small businesses would need to identify who would undertake the activiiy.  The benefits of online monitoring should be included in the policy and ideally an impact assessment done to establish the risks.  Monitoring should not be excessive and should only be done to meet a clearly defined purpose otherwise employees will develop mistrust of their employers intentions which is not conducive to a harmonious working environment.

Individuals who are undertaking the monitoring should be provided with training that includes maintaining privacy and confidentiality if accessing personal information.  These individuals should have clear written guidelines in this regard.

If monitoring is to enforce company rules a link to the disciplinary policy should be stated with the procedure clearly explained along with sanctions for non-compliance.

Employees should be made clearly aware that the policy is being implemented or exists and has been reviewed. New employees should be informed as part of an induction procedure. Ideally an employer should get explicit written consent to monitoring in writing by implementing a consent form.

Replies (3)

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Shonette new
By Shonette
18th Jan 2016 09:26

We've been getting a great reaction to this post across our social channels - in particular many people are saying that there needs to be appropriate policies and information in place. There's also a concern of to what extent employers then feel they can monitor employee communications both inside and outside of work!

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By Jasmine Gartner
18th Jan 2016 21:06

Thanks for sharing, Sandra.

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By Francois
26th Jan 2016 10:54

This is Orwellian, I'm sorry. It's also a fundamental misunderstanding of how we work. I'm sure in an ideal world an employer would love their employees to work, unimpeded by distraction, for 40 hours a week. But unfortunately, this isn't an ideal world and people have complex lives and become distracted and experience lulls in productivity throughout the day.

I'd understand if an employees output was being severely degraded by their online activities (surfing facebook for hours etc.). But if their work gets done, what right is their to impose really?

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