Gill Taylor: You can access staff emails, but go gently

Although the European Court of Human Rights recently found that an employer was justified in reading an employee's private messages, it is wise for you to tread carefully on this issue, writes the HR expert

Gill Taylor
Gill Taylor

I'm all in favour of civil liberties and freedom of speech. I don't think employers should intrude on employees' private emails or social-media posts. Generally speaking, that is - because sometimes, as employers, we might want to or need to.

The European Court of Human Rights recently found that an employer was justified in reading an employee's private online messages. This decision received some publicity in the national media here, but it is worth running through the detail and assessing what this means for charity employers and their staff.

The case concerned an engineer who used his business Yahoo Messenger account to send and receive personal messages to his fiancée and his brother, including messages about his health and his sex life. This was in direct breach of his employment contract, which explicitly said that employees were forbidden "to use computers, photocopiers, telephones, telex and fax machines for personal purposes".

His employer, who discovered this accidentally, dismissed him. He argued in the ECHR that the Romanian courts should have excluded all evidence of his personal communications on the grounds that it infringed the right to privacy enshrined in the European Convention on Human Rights, which set up the ECHR.

The ECHR said his right to privacy was a consideration, but the Romanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The court took into account the fact that the Romanian court judgment did not reveal the precise content of the personal messages - only that they were personal. The court said the employer could monitor the messages because it believed it was accessing a work account and it was reasonable to check that employees were working while at work.

The decision, given in January, applies in the UK, but does not give free rein to unregulated snooping or "phishing" expeditions.

The judgment said: "If the employer's internet monitoring breaches the internal data-protection policy or the relevant law or collective agreement, it may entitle the employee to claim constructive dismissal, in addition to damages."

So let's take this as a reminder to check and update your policies and practices on data protection, IT and internet use, and social media (work and personal). It is really important to be clear about two things.

First, when it comes to staff using work emails and social media and the level of personal use that is acceptable, it is always important not to be heavy-handed, and if you already allow or tolerate some personal use, just carry on. This case has clarified that an employer is justified in accessing emails or social media posts it thinks are about work and, if it finds something untoward, can take action if this use is in breach of the organisation's policies.

Second, if an employer specifies that personal social media is not to be used to bring the organisation its staff work for into disrepute, and if it finds out about an employee's derogatory comments concerning work, or people at work, or clients, or stakeholders on personal Facebook posts, for example, these can also be used in disciplinary situations.

Gill Taylor is a sector HR consultant

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