How often do you catch your employees using their work email or computer for non-work related activities? Online shopping, social media updates, personal correspondence, using work calendars to plan their personal lives – hair appointments, birthdays and reminders to take out the bins….
Many employers, and employees alike, don’t realise that any information recorded or stored on work email accounts or computers is company property and can be used in any internal or legal proceedings. This was reinforced this summer by the High Courts in the case of Simpkin v Berkley Group Holdings plc, followed by the European Court of Human Rights in Barbulescu v Romania.
In the case of Simpkin, the employee, S, drafted a letter on his work computer to his solicitor in relation to his divorce proceedings, which he then sent from his work email account to his personal email account. S sought to claim that the letter was confidential from his employer and attracted legal professional privilege in subsequent proceedings against that employer. In turn, the employer wanted the letter disclosed because it contained financial information about S pertinent to their defence in separate proceedings. Garnham J clarified within his judgment that an employee has no reasonable expectation of privacy from his employer in respect of documents created, stored and sent out using company property. This was especially the case given that employer had a clear IT policy (which S had signed) and there were clear provisions in the employment contract which stated that the company could monitor emails without S’s further consent.
In a further update to this area of law at the beginning of September, the 2016 European Court of Human Rights case of Barbulescu v Romania, in which an employer monitored an employee’s personal Yahoo account after he had accessed it through a work computer, was unexpectedly overturned in favour of the employee’s right to privacy. However, this was on the basis that the employee did not know that his internet access was being monitored, and therefore he did have an expectation of privacy.
As employment lawyers, we’re often asked to what extent employers are entitled to monitor and access their employees’ emails or computer/mobile phone activities and content. These recent cases illustrate that the court’s view is that employers absolutely can monitor employee activity at work, provided it has been made clear to the employee through policies and contractual documentation. Employees therefore can have no expectation of privacy, and as such no claim for confidentiality. However, failure to make this practice clear can result in various claims of a right to privacy (under the ECHR), a breach of data protection obligations and a breakdown in trust and confidence.
Similarly, employers must also give careful consideration around how they go about monitoring an employee to ensure they comply with their wider legal obligations and duty of care. For example, whilst employers are permitted to monitor and access an employee’s email traffic, they are not permitted to intercept such emails except in very limited circumstances under the Regulation of Investigatory Powers Act (RIPA) 2000. Intercepting an email entails gaining access before it has been opened by the intended recipient.
To protect business interests, all organisations should adopt a clear and well-communicated electronic communications policy to allow monitoring and access to staff communications and electronic activities as and when appropriate. Associated policies, such as social media in the workplace, disciplinary procedures, bringing personal devices to work and data protection, should also be adopted or updated to clarify your expectations for employee behaviours at work.
Speak to employment partner Claire Knowles for help with these areas and to find out more about how we can help protect your business. Call Claire on 029 2067 4404 or email her at firstname.lastname@example.org.
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