The recent case of Barbulescu v Romania in the Court of Justice of the European Union (CJEU) sent media reports into a frenzy over the effects it would have on an employer’s ability to monitor employee communications. We looked at the implications of that case in our blog here.
As should be clear, the case does not change the law in this area, but it provides a good opportunity to review practices and policies surrounding the monitoring of employee communications, which should be done regularly in any event.
Here are our top ten tips for employers to remember regarding the monitoring of employee communications:
1. Employers do not have “permission” to delve through all the personal communications of their employees with impunity. Article 8 of the European Convention on Human Rights gives individuals the “right to respect for [their] private and family life” and it can apply to workplaces, if there is a “reasonable expectation of privacy”.
2. Neither can employees expect total privacy in their use of computer and communications systems at work, especially where those systems belong to their employer and communications take place during working hours. The “right to respect for [their] private and family life” is not a “right to privacy” and it is not absolute.
3. Provided that certain requirements are met (see below) employers can monitor their employees’ use of computer systems and communications, which may include the right to see (and use) the content of those communications. This is what happened in the Barbulescu case.
Sanctions for breach of a communications policy must be proportionate to the breach committed, and employees should be made aware of what the penalties for breaching the policy are.
4. If an employer intends to monitor, for instance, emails or internet use, it must ensure that it has the contractual right to do so by including reference to it in contracts of employment and/or a suitable contractual policy in its staff handbook.
5. Affected employees must be fully aware of the employer’s intention and right to monitor their communications etc and the justification for why it may do so.
6. Before carrying out any monitoring, employers should consider whether it is reasonable and proportionate to do so in light of the reasons for monitoring employees. It must be satisfied that the reasons for monitoring outweigh the adverse impact on the employees’ right to privacy.
7. Employers should have a policy in place which clearly explains the circumstances in which employees may or may not use the employer’s computer and communications systems for private communications.
8. Employees should be made aware, through training, of the contents of the policy – in particular what they can and cannot do. If some personal and private use of systems is permitted by an employer, it should encourage employees to mark such messages as ‘private’ and ‘personal’ and advise other employees that these should not be opened unless there is a compelling reason to do so.
9. Sanctions for breach of a communications policy must be proportionate to the breach committed, and employees should be made aware of what the penalties for breaching the policy are.
10. Any monitoring by an employer of an employee’s use of computer and communications systems should be carried out in a fair and transparent manner. For more information, the Information Commissioners’ Office publishes the “Employment Practices Code” which deals with the subject of monitoring in detail (at Section 3) – you can find it here.
For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact Michelle Gray or Kim Freeman-Smith of the berg Employment team on 0161 833 9211 or by email at firstname.lastname@example.org or email@example.com.
(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.)