Steps for employers to take after court ruling restricts rights to monitor staff at work

Barry Warne

Employers are urged to check whether their IT policies are illegal following a landmark decision that restricts their ability to monitor employees’ emails and other electronic communications.

The European Court of Human Rights agreed that a Romanian man’s right to privacy under Article 8 of the European Convention on Human rights was breached when he was fired for using an online chat service on company equipment – despite a ban on such personal use.

Barry Warne, head of hlw Keeble Hawson’s employment team, said: “Businesses should bear in mind that the issue was not the employee’s violation of reasonable company rules, but the way it discovered this – by monitoring his activity unbeknown to him.

“The solution for employers wanting to check employees’ communications on work devices is to be very clear with staff about the extent to which their e-mails will be monitored and the reasons for it.”

Mr Warne has compiled a four-step guide for employers to ensure they stay legal while protecting their interests, being fair to staff and protecting others.

  1. Informing staff of the company’s policy on the use of IT, telephones and faxes is vital and should be clearly communicated. The most effective ways are by e-mails with read-receipts, an intranet bulletin to all staff (re-sent for new starters) or securing a signature on a hard copy document.
  2. Give employees some leeway, possibly by allowing a limited number of private emails, or allow staff to use the work system during breaks and telling them to mark their private e-mails as “Private” in which case they will not be read by the company.

3.: Employers may monitor e-mails in order to detect and prevent crimes, such as fraud or downloading obscene materials.”

  1. The ruling only covers emails and other communications on company equipment. Employers can’t lawfully track or hack into personal devices even if used in the workplace .If they suspect banned use on company time, they are advised to discipline or dismiss the staff member – forcing them to provide the evidence that they weren’t using the device for personal purposes at the time.

It is far better to prevent a problem in the first place. Organisations should seek the advice of a legal practice with a strong track record in employment law on how the ruling affects them and how best to implement policies on privacy and protection that are fair and legal.


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