You’ve probably seen the recent headlines: ‘Employer breached employee’s human right to privacy by reading workplace emails’, ‘Employers can’t place employee communications under surveillance due to human rights’, et cetera, et cetera.
The thing is, broadly speaking and barring one key exception, those headlines are wrong. Why? Firstly, because the facts of the case were unusual and, secondly, because the employer failed to do something which, nowadays, is standard practice and commonplace.
Let’s look into these two points briefly.
Firstly, the facts of the case were unusual. Basically, the Appellant was a Romanian employee who sent private messages to his brother and fiancé at work. The employer’s computer policy banned private messages using work computers and during working hours. Nothing unusual so far. In this case, however, the employer set up an online chat account for employees (albeit it was expressly limited to professional and work-related communications only). Unfortunately for the employee, the employer decided to check his chat logs and found private messages to his brother and fiancé. Due to the explicit nature and quantity of these messages, it dismissed the Appellant.
On appeal, the European Court of Human Rights overturned the previous decision of the lower tier of the same court (that the employer had acted reasonably in accessing the work logs due to being under the impression that the messages would all be work-related) and, instead, ruled that the Appellant hadn’t been informed in advance that the employer had the power to monitor his communications and, therefore, he didn’t receive sufficient protection of his human right to private life and correpondence.
Now, I know that most employers will be fairly dumbstruck by the decision and the corresponding implication that an employer can’t check their own systems for evidence of breach of their own rules. However, the employer in this case made one vital mistake which was key to judgment being entered against them. Basically, they failed to inform the Appellant in writing that they had the power to monitor electronic communications. That’s it! All they needed to do was put a suitable sentence in their rules and/or a relevant policy and it wouldn’t have constituted a breach of the Appellant’s human rights because, put simply, he would have been aware that his personal communications could be monitored and, therefore, wouldn’t necessairly stay private (therefore removing any reasonable impression that they were protected by his human right to private life and correspondence).
So, that’s the lesson here. Simply make sure that you formally inform staff by way of a written rule or policy that workplace communications can be monitored (which is fairly commonplace nowadays) and, should you have good reason, you can monitor and check your employees’ communications on your workplace systems and/or mobile devices. On this occasion, then, ignore the terrifying anti-Big Brother headlines and simply ensure your policies and/or rulebook are up to date. Whilst policies may seem boring, they can avoid 10 year legal battles all the way up to the European Court of Human Rights in Strasbourg!