Anna Bunting, partner in our Employment team: Monitoring Employee Internet Use: Now it’s getting personal!

Monitoring an employee’s internet or email use is nothing new. Businesses naturally want to ensure that their employees are actually working rather than spending their day surfing the internet or arranging their social life on Facebook.

Although monitoring is quickly becoming a necessary evil in the workplace, this does not mean it is a straightforward area free of legal complications. Employers need to ensure any monitoring is compliant with relevant legislation such as the Data Protection Act 1998 and that employees are aware that it is taking place.

Particular caution should be exercised when accessing an employee’s personal emails or communications and the general advice is to avoid opening or reading any personal messages. This can sometimes make it difficult to discipline or deal with those employees who are breaching the rules on personal email use.

Earlier this week, the European Court of Human Rights gave hope to employers in this tricky situation.

In the case of Barbulescu v Romania, Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send messages to his fiancée and brother in breach of his employment contract. These messages were highly personal and included details of his health and sex life.

His employer accessed these messages and dismissed him.Mr Barbulescu claimed that the Romanian courts should have excluded the emails from evidence as his employer obtained them unlawfully.

Mr Barbulescu lost his case. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours and as such the Court held that they were justified in considering the personal messages.

The employer had a clear rule which prohibited personal internet use of any kind and employees had been notified that monitoring would take place following the dismissal of another colleague for a similar offence. The judges commented that the employer had accessed what it believed to be a work account on the assumption that the information within it had been related to professional activities and that such access had therefore been legitimate.

Although this decision does not herald a change in law it gives some good news to employers that reasonable monitoring of personal messages can, in some cases, be lawful.

It remains essential that any monitoring is done properly in accordance with a lawful and reasonable policy as the Court confirmed that employees still need protection against ‘unfettered snooping’. Please therefore ensure that you have up to date and robust policies in place on monitoring and computer use.

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