Can the employer monitor employee’s private use of the internet or telephones whilst they are in work?

These days with many employees having tablets or phones provided by their employer are likely to forget that they are using work equipment and perhaps send a text message or post something on Twitter or Facebook of a personal nature. That employee might even think that in doing so what they are doing is “private” and part of their personal life rather than work life: only this week I have been dealing with a case where a rather inappropriate email was found on the employer system sent by one employee to another (I’m afraid I won’t elaborate on the content of the email as the easily impressionable may be reading!).

An employer might have concerns about the amount of their time that they are paying their employee for is being spent on such non-work related activities or indeed whether the employee is acting in breach of, for example, their policies on things like bullying and harassment.

A recent case that went to the European Court of Human Rights involving a Romanian situation looked at this issue. The employee concerned was an engineer who had been using his business Yahoo messenger account to send and receive personal messages with his fiancé and his brother including messages about his health and sex life. His employer discovered this only accidently but the employee argued that the Romanian Courts should have excluded any evidence that related to personal communications on the grounds of it infringing his Human Rights to privacy under the European Convention.

Article 8 is the relevant part of the Convention that relates to the right to respect for private and family life, home and correspondence. The court acknowledged that that right was engaged, but nevertheless found that it was reasonable for the courts to look at that evidence in deciding whether or not his dismissal had been justified. They were particularly influenced by the fact that the court judgment didn’t reveal precise contents of the messages rather it focused on the fact that he had been sending personal messages in work.

The court recognised the need for employers to be able to verify that their staff are actually completing professional tasks during working hours as opposed to time wasting or something else. It is not a licence to snoop on your staff but it may be worth outlining in your computer use or communications policies that you do have the right to consider such issues so as to manage the employees’ expectations.

If you have any questions please do not hesitate to email me mailto:adenton@refreshinglawltd.co.uk