Employment Round-Up - January 2016

Our monthly review of key cases and new law affecting employers

Employee monitoring - behind the headlines

Decision: Despite the headlines, a recent decision of the European Court of Human Rights (ECtHR) on workplace monitoring does not quite give employers the green light to monitor their employees' personal emails and private messages.

In this case, the employer asked an employee to set up a Yahoo Messenger account for business purposes. During a period of monitoring this account, the employer uncovered personal use of the account in breach of company regulations which expressly prohibited the use of company computers for personal purposes. Although the employee denied using the account for personal purposes, during a disciplinary process, he was presented with a 45-page transcript of communications which included exchanges with family on personal matters. He was dismissed. Whilst the ECtHR accepted that there had been an interference with the employee's "private life" and "correspondence" within the meaning of Article 8 of the European Convention on Human Rights, it concluded that there had been no violation of the Article since his employer's monitoring had been limited in scope and was proportionate in the circumstances. It was not unreasonable for an employer to want to verify that its employees are completing their professional tasks during working hours.

Impact: This case is unlikely to have far-reaching implications for the UK and, contrary to some reports, it does not set a precedent for employers to monitor, carte blanche, employees' private messages on social media or other messaging forums.

The level of workplace monitoring that an employer can legitimately carry out is restricted by the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000. The Information Commissioner's Employment Practices Code also includes guidance and good practice recommendations on the monitoring of electronic communications.

Employers should ensure that employees are aware of any IT monitoring that they carry out and make clear whether personal use of company equipment is allowed. This should all be set out in a policy, linked to the disciplinary policy if required. Any such policy should be transparent and implemented consistently, and monitoring should be limited to that which is proportionate. With a clear policy in place, the legitimacy of an employer's actions will then depend on whether it strikes a fair balance between the...