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Glasgow
+44 (0)141 221 2984

Edinburgh
+44 (0)131 225 6366

Stirling
+44 (0)1786 451745

Dumbarton
+44 (0)1389 765238

Hamilton
+44 (0)1698 459444

French Duncan

FEBRUARY 2016 Are Employers free to ‘spy’ on employees’ communications?

You might have read some recent press coverage about workplace emails that would lead you to assume that employers now have free reign to spy on their employees communications; even their personal emails or messages. However, on further reading, the reality is somewhat different.

The Case

The case which brought this to the media’s attention involved an engineer in charge of sales employed in Romania. He was asked to create a Yahoo messenger account by his employer to respond to client queries. The company had a clear policy forbidding employees from using company property for personal purposes. After being monitored for a week, the company informed the employee that he had been found to be using the Yahoo account to send personal messages. The employee denied this claim and was provided with a 45 page transcript of the messages that he had sent of a personal nature, including to his fiancé. The employee was dismissed and brought a claim to the European Court of Human Rights focusing on Article 8, an alleged breach of his right to respect for his private and family life.

The Court’s task was to establish if there was a fair balance between Romanian employment law and Article 8. The Court said it was ‘not unreasonable that an employer would want to verify that employees were completing their professional tasks during working hours’. The facts of this case were crucial. The employee was strictly forbidden from using the computer for personal use and also that the employer was monitoring the messages only and not their content. This was therefore not found to be a breach of his right to privacy.

What does this mean for UK employers?

The good news is that this does not change UK law in any way. However, this case does not give employers a carte blanche right to snoop on all employees’ communications. As an employer, the right to monitor your employees must be carefully balanced against the right to privacy. What this means is that you should ensure that you have a legitimate reason for monitoring before doing so.

So with this in mind, now is a good time to review your communications and/or monitoring policy or to implement one if you don’t have a policy in place.

To comply with current UK legislation on monitoring employees we would advise that you consider the following:

  • Do you have a legitimate reason for monitoring staff and is it necessary?

  • Do you have a clearly policy on monitoring staff and the purposes for doing so?

  • Have you made it clear to employees how and why monitoring might take place? 

As you can see, the Daily Mail’s headline ‘”Bosses were yesterday given the right to spy on staff emails” bears almost no truth. You cannot trawl through your employee’s emails or phone calls on the hope that you find something incriminating. However, should you have a rationale behind monitoring, then there is UK legislation in place to allow you to take such action. As previously mentioned, it is all down to a test of reasonableness.

Further Information & Support

If you would like further information, French Duncan HR Services would be delighted to assist you.   Please contact Louise McCosh who leads the French Duncan HR Services team on 0141 221 2984 or email l.mccosh@frenchduncan.co.uk.