Managing expectations may be key to dealing with staff practice around work email.
Recently we highlighted one ICAEW Legal Alert that clarified work email accounts are not private, and should not be expected to be so.
Another, more recent one does also suggest, however, that an employer would be well advised to specifically notify staff if they plan to actively monitor particular email accounts.
Perhaps it’s about good practice, and striking a balance?
• You need a clear work IT policy, and to realistically manage employees’ day-to-day expectations
• In addition, if you are going to start monitoring individual email accounts, tell people specifically in advance?
What you’re aiming for, of course, is to avoid the need for disputes in the first place.
The recent Legal Alert is entitled: ‘Case law: Employers reminded of importance of telling employees before monitoring their electronic communications’.
Its intro reads: ‘An employer wishing to monitor an employee’s private communications should, in assessing whether monitoring is to achieve a legitimate aim and is sufficiently limited and proportionate, ensure the employee is told of the possibility that their online activities may be monitored.’
The case took place in Romania. The employer, says the account, ‘had a strict computer and communications policy prohibiting employees from using work email and other communications systems for private purposes’.
The specific employee concerned was asked ‘to set up a Yahoo Messenger account to communicate with customers’.
The employer monitored this, to check customer care, and found the individual was also using it for limited private communications with family during work hours.
‘It dismissed him for breaching its policy and the Romanian courts upheld his dismissal.’
However, the employee appealed to the European Court of Human Rights (ECHR), ‘arguing’, says the Legal Alert, ‘that the employer had, by monitoring his private communications, breached his right to privacy… He also argued that the monitoring was not a proportionate means of achieving a legitimate aim’.
The court, on balance, agreed with the employer. See fuller details over in the Legal Alert.
But the Grand Chamber, says the account, suggested the employer should have specifically alerted the employer to the fact that they planned to monitor this account.
In its opinion, as a consequence, ‘the scope of the employer’s monitoring… was not sufficiently limited in scope or proportionate’.
Better be safe than sorry?
Be up front and specific about any plans to monitor individual accounts – even if you already have the safety net of a clear and strict IT policy?
And its closing recommendation?
‘An employer wishing to monitor an employee’s private communications should, as part of its assessment of whether the monitoring is sufficiently limited and proportionate, ensure the employee is told of the possibility that their online activities may be monitored.’