An employment law expert from Southampton says employers need to make it much clearer when and how they are monitoring their staff, after the European Court of Human Rights decided that a Romanian employer that read its employee’s emails had breached the right to respect for his private life.
Simon Rhodes, a partner at Trethowans, says this week’s court decision should act as a warning to local businesses, with UK courts sure to follow with decisions of their own.
The Romanian worker had exchanged messages with his fiancée about his sexual health. The messages were sent and received on his employer’s system. His employer read them whilst monitoring its own system. The European Court of Human Rights found that the behaviour was unacceptable, as the employer hadn’t told the worker that it might viewed his messages.
Rhodes said: “Some might say it was obvious that his employer might read anything on its systems and what did the employee expect. Other people will be appalled that the employer didn’t immediately realise that it was wrong and stop. This issue will spark a bit of controversy. Employers can monitor activity, but they should carry out an impact assessment before monitoring staff. That should include considering the purpose of the monitoring, how it will be publicised and implemented, whether alternatives might lessen the impact of what’s proposed; and overall whether that monitoring is justified.”
Rhodes added that many workers used their employer’s telephone, email and other messages systems for private use so employers needed to have a clear and well-published policy on what monitoring they did.
He said: “Reading emails, listening to telephone calls, filming via CCTV are all potentially lawful, if the purpose is justified, the use is limited and likelihood is well publicised. The Information Commissioner’s Office provides guidance that is well worth reading. One example of the steps required is that warning signs about CCTV use should be very clear and visible.”
Employers need to review what monitoring is really necessary and what benefit will it bring. “Complying with the law and having clear a policy are essential,” he said.
He concluded: “The fact that the messages related to his sexual health has probably helped to publicise the case. Information about the health of an employee is noteworthy, but it would be even more controversial where the health or other confidential information is about a member of the worker’s family or a friend. With people messaging each other about anything and everything via work email, it’s only a matter of time before an employer stumbles on a private email and reads it accidentally. Whether that is illegal or not may depend on what was done to tell the worker it might happen.”