A recent decision of the European Court of Human Rights has dealt with to what extent employers can legitimately monitor what their employees are doing and saying whilst at work. The case in question dealt with Yahoo Messenger, but its principles apply to any kind of employee monitoring whether by CCTV, recording telephone conversations or viewing emails, text messages or other internet messaging services accessed from workplace devices.
The ECHR confirmed that employees have the right to privacy in their communications, even those taking place on work time and using work equipment. An employer can only interfere with that right if they have a legitimate reason to do so and that interference is no more than is necessary to achieve that goal. If employers do intend to monitor employees, they should be told that this might happen in advance.
The Court gave some guidance as to the factors that will be relevant in deciding whether an employer’s interference with the right to privacy is legitimate:
(i) whether clear notification about the nature of the monitoring was given in advance;
(ii) the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy, i.e. whether they are monitoring the flow of communications or their content, whether all communications or only part of them have been monitored, whether the monitoring was limited in time, and the number of people who had access to the results;
(iii) whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content: monitoring of the content rather than flow of communications requires weightier justification;
(iv) whether it would have been possible to establish a monitoring system based on less intrusive methods and measures than directly accessing the content of the employee’s communications;
(v) the consequences of the monitoring for the employee subjected to it, the use made by the employer of the results of the monitoring operation, and in particular whether the results were used to achieve the declared aim of the measure;
(vi) whether the employee had been provided with adequate safeguards, especially when the employer’s monitoring operations were of an intrusive nature.
From this, we learn that employers can monitor their employees’ communications but must make sure that the employees are aware that this will be done before it is done. The easiest way to do this is in an IT policy, though drafting a policy is not enough: steps should be taken to make sure that all employees are aware of the policy and its contents.
Before undertaking any monitoring, employers should assess why it is necessary and think about the least intrusive way of achieving that aim. For example, wanting to ensure that employees are not abusing workplace facilities might be achieved by looking only at the amount of time employees are spending using particular websites but not their activity on those sites, or the number and recipient but not content of messages sent by email, text message or other messaging service. In other contexts, employers might need to see the content to check whether messages were genuinely work related or personal. The need for monitoring should be considered and noted, for example if a lack of productivity or other evidence suggests that a particular employee is using work facilities for excessive personal use.
It is prudent to document an assessment of what monitoring is required and why. It is essential to ensure that the content of any private communications are only seen by those who need to see them (e.g. in a disciplinary matter, by the management and any HR advisor dealing with the issue).
Contact Louise Taft on 020 7935 3522 or firstname.lastname@example.org if you want any help drafting an IT Policy, would like your existing policy reviewed to check compliance with the ECHR decision, or want to discuss whether a plan for employee monitoring is likely to be viewed as lawful.
Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.