A new European Court of Human Rights (ECHR) ruling allows employers to read workers' private messages sent via chat and email software during working hours. But what are the real implications for UK employers? Here are five questions answered by an employment lawyer to help bring you up to speed.
Jamie Lawrence, Editor, HRZone: Does this ruling cover the use of both personal accounts used at work as well as work accounts used at work?
Kathryn Dooks, Employment Partner, Kemp Little: This particular ruling just covers work accounts used at work, but there have been similar cases in the UK on the misuse of personal accounts at work in previous English Tribunal cases.
[JL] People are saying this change is not actually that big a deal. Why are they saying that? Is it true?
[KD] Yes that's correct. There are two reasons:
UK private sector employers are not bound by the decision.
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The European Convention on Human Rights (and the Human Rights Act, which implements the ECHR in the UK) only restrict public authorities, not private sector employers.
However in a claim by an employee against their private sector employer (for example for unfair dismissal, having been dismissed for personal use of the employer's email system in breach of the employer's policies), the court or tribunal must have regard to the HRA and the ECHR when making its decision, so private sector employers still need to pay heed to this decision.
English Employment Tribunals have reached similar decisions
The outcome is unsurprising because English Employment Tribunals have made similar decisions in the past.
For example, Tribunals have held that, where an employer has a clear policy, which has been brought to employees' attention and which permits them to monitor employees' use of the company's systems, dismissal for misuse of the system (for example by sending personal emails which is not permitted under the policy) is fair.
The question is whether the employee has a reasonable expectation of privacy on the company email system.
Monitoring of employees' emails and instant messages is mainly dealt with under The Data Protection Act, which is also derived from EU legislation. The Information Commissioner's Office guidance for employers on monitoring states that:
- employers should undertake a risk assessment before monitoring;
- the monitoring must be justified and proportionate; and
- employees should be notified that monitoring is taking place (and in certain cases consent may be required)
If employers have notified employees that monitoring will take place, then in most cases monitoring of messages sent on company systems is likely to be permissible, although there may be circumstances under which consent is required.
[JL] What should employers do immediately in the wake of the ruling?
[KD] Review their policies, practices and contracts to ensure they are robust, particularly as regards the bullet points above.
[JL] What should employers' longer-term plans be in the wake of the ruling?
[KD] Ensure that they are acting in line with their policies and consider modifying their practices or amending their policies if this is not the case.
[JL] Should employees take any action off the back of this ruling? Do they need to change behaviours?
[KD] Employees should bear in mind that using company IT and communications systems (including sending messages via company mobiles) for personal use may not be completely private and they should familiarise themselves with the company's IT policy.
About Jamie Lawrence
Jamie Lawrence is editor of global online HR publication and community HRZone.com. He is committed to driving forward the HR agenda and making sure that HR directors have the knowledge and insight necessary to make HR felt across the whole organisation. He regularly speaks to audiences of 250+ and has interviewed key HR industry names, including Daniel H. Pink. He has worked previously as a small business journalist and a copywriter and has published non-fiction that reached #2 on the NYT Children's Bestseller List. In his spare time Jamie likes writing fiction, films, fitness and eating out.