ECHR U-turn on employers’ right to monitor communications ruling

Woman using laptop

Employers should make extra sure they clearly highlight their right to monitor workers’ use of the internet after an unexpected ruling by the European Court of Human Rights (ECHR).

In a well-known 2016 judgment, the ECHR said a Romanian employer acted lawfully when it monitored an employee’s personal use of a Yahoo Messenger account on a workplace computer. The employee, who used the account to engage in personal conversations, argued unsuccessfully that, in monitoring his messages, his employer had breached his privacy rights.

However, after an appeal, the Grand Chamber (the top tier of the ECHR) has reversed that ruling, holding that the employer had breached the employee’s Article 8 right of respect for private and family life. It found the Romanian national courts had not struck a fair balance between that right and the right of the employer to take steps to ensure the smooth running of the business. Significantly, the ECHR held that the courts had not established whether the employee had been notified that his employer might be monitoring his communications.

Review your policies on personal communications

Employers should set clear rules on the use of the internet, including email and social media, at work, and should flag up their right to monitor such use in either their contracts of employment or staff handbook. For some practical tips on managing the risks posed by email and internet use read our Email and Online Risks Briefing Note.

We also strongly advise businesses that allow employees to use personal computing devices for work to implement a detailed bring your own device (BYOD) policy, outlining (among other things) the business’ position on security requirements, monitoring the use of devices, personal data, costs and reimbursements and the procedure on termination of employment. Read our BYOD Briefing Note to learn more.

To book a review of your policies relating to employee internet use please email Paul Maynard (Employment Law Services Partner) or call him on 01323 435 900. To learn about Paul’s skills and experience please view his website profile.

Find out more about the services we offer by visiting our employment solicitors page.

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