Contrary to what you may have read in the British press, the European Court of Human Rights’ (ECHR) decision in a recent case (Barbulescu v. Romania) does not give employers free rein to monitor any and all communications made at work by their employees.
In fact, nothing has really changed: the case simply reiterates the need for employers to have a clear IT and Electronic Communications Policy. Any policy should set out the standards of conduct that you expect from employees and when monitoring may occur. Any monitoring must be reasonable and proportionate and generally, there should be a good reason – for example, if you believe that an unacceptable activity is occurring – for actively monitoring communications and email usage.
In the ECHR ruling, the employer had asked the employee to set up a Yahoo! account specifically for dealing with client queries about company products. The employer monitored this account to ensure that those queries were being dealt with in a manner which was acceptable. It discovered that the employee had been using the account to send personal messages. Those messages weren’t just in relation to, say, a home emergency – they concerned the employee’s love life! When challenged, the employee denied having used the account for such communications. In response, the employer produced evidence that relied only upon the Yahoo! Communications – it did not search the computer for other data and documents. The court therefore found that the monitoring was ‘limited in scope and proportionate in the circumstances’.
The court also found that it had not been "unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours". Additionally, Mr Barbulescu had also had a prior warning about personal correspondence and had been warned that the company would check his messages. Ultimately, his sacking was more about his dishonesty than anything else.
In summary, the employer was transparent in its policy that the internet was not to be used for personal use and the employee was in clear breach of this policy.
However, as personal and work life boundaries become more blurred because of the increase in remote working and working hours it is important to ensure that you have clear policies and procedures in place regarding the use of the internet and employer owned devices for personal communications.
Ensure that your policy is lawful, appropriate and communicated effectively to all employees and, if you’re not sure, ask us.