It is common these days for employers to retain the right to monitor and review their employees’ work email accounts and work IT usage. However, a recent decision by the European Court of Human Rights (ECHR) appears to go one step further and permit employers to now check on workers’ private or personal messages. http://www.bbc.co.uk/news/technology-35301148
A “win” for employers? Not necessarily. Before employers start accessing employees’ personal emails carte blanche, they need to be aware that whilst no doubt a significant ruling this is a very fact-specific case. It concerned a worker whose contract was terminated as a result of his personal use of Yahoo Messenger whilst at work. The worker challenged this decision by asserting that his employer had breached his right to confidential correspondence when accessing these messages. The ECHR disagreed and ruled that his employer had a right to monitor his activities on Yahoo Messenger.
It is important to note that the Yahoo Messenger account in question had been initially created for work but was subsequently used for both personal and professional contacts, indeed the employer believed that it was monitoring a work email account. It is also relevant that the employer in question had an express policy banning personal use of its IT systems and the worker denied personal use of the account. Accordingly, this decision is highly unlikely to definitively change the distinction between an employer’s ability to look at professional material versus its ability to monitor personal content. This decision is simply not the perceived ‘go-ahead’ for employers to start monitoring and intercepting employees’ personal communications, at will.
What this case does clearly demonstrate is the importance to employers of having a clear IT/Communications policy in place specifying what information is or will be monitored and how, as well as clarifying what personal use (if any) of company IT systems is permitted. If an employer starts peeping at personal material on its work systems before setting out to employees what is required of them, and at the very least having a significant justification for its actions, it runs the risk of being on the receiving end of litigation proceedings itself.
