Employee emails: No snooper's charter

The applicant (B) was employed from 1 August 2004 to 6 August 2007 as an engineer in charge of sales. He created a Yahoo Messenger account for responding to clients’ enquiries. He was told by his employer that these communications had been monitored for a period of around seven days and that the records showed that he had been using the messenger service for private purposes, in breach of the company’s policies. 

B argued that, in accessing his private messages, his employer was in breach of the Romanian criminal code and his right to privacy under article 8 of the European Convention on Human Rights, and therefore it could not rely on the evidence in relation to disciplinary proceedings during which he was dismissed. The ECtHR disagreed. 

The decision has led to some hysterical headlines claiming that it is a snooper’s charter, but that is not entirely correct. In this instance, the court recognised that article 8 rights did apply. However, the employer legitimately believed that the Yahoo account was being used for work purposes; the private messages were relied upon by the employer only to the extent that they were necessary to show that the employee was in breach of the employer’s internal policies; and the employer’s monitoring of the employee was limited in its scope. The ECtHR concluded that the domestic courts had struck the correct balance between the employee’s expectation of privacy and the employer’s legitimate interests. 

The decision will be taken into account by UK courts when considering similar issues, but it is not entirely at odds with the approach already taken by the English tribunals when looking at issues of employee monitoring and privacy. 

English employment law already recognises an employer’s right to monitor an employee’s use of workplace emails and internet, subject to important checks and balances. The Employment Appeal Tribunal has also demonstrated its willingness to rely on evidence that, on the face of it, might otherwise breach the employee’s article 8 rights (for example, in City and County of Swansea v Gayle UKEAT/0501/12), which dealt with the covert videoing of employees).

Nevertheless, this case should not be seen as giving employers carte blanche to trawl through employees’ private communications. Each case is likely to be fact specific. 

Employers should also be aware that, as well as convention rights:

• If the monitoring involves processing personal data, there are considerations under the Data Protection Act 1998; 

• Employees may argue that covert monitoring breaches terms of trust and confidence between employer and employee, entitling them to resign and claim constructive unfair dismissal or breach of contract; and

• Depending upon how the data is accessed, there may be issues of criminality (e.g. if private email accounts are hacked).?

Employers would be well advised to read the Information Commissioner’s Office’s code on employee monitoring. As for employees, if you would be embarrassed by your employer reading any of your messages, the simplest solution is not to do it on your employer’s time or devices.

Sarah Rushton is employment partner at Moon Beever @MoonBeever www.moonbeever.com

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