18th January 2016

Does Big Brother know about your Friday pints?

Email is a great tool isn’t it?  You have the power to send anything you want to the recipient, be that a quick message, a link to an interesting website, a photograph, or even attachments such as tribunal employment productions.  All this at the click of a button.

There are many businesses, like ours, where a large part of the working day is spent working on a computer.  Most businesses provide their staff with business email accounts in order that they can communicate with colleagues, clients, customers and so on.

What about employees using work email/internet for personal matters?  I’m sure we have all done it at some point.  I know I have.  Be it a mass email with stag/hen doo arrangements or a quick email to the husband/partner/wife/mother to advise “I’ll be late home tonight, get me something decent for tea”.  Of course, there will be far more sinister examples than these.  What power does an employer have to regulate personal use of email/internet during working time?

The starting point is of course in the employer’s own policies.  It is prudent for employers to have an email/internet policy.  This can be used to set the boundaries.  For example, is it a zero tolerance approach of no personal emails from work?  Many employers opt for allowing reasonable personal use.  Some opt for permitting use during the employee’s lunch breaks only.

That is all fine and well.  How, though, can an employer ever police this?  Surely checking staff emails/internet use would infringe their human rights?

A recent decision of the European Court of Human Rights provides some encouraging news for those employers who have that rogue employee who sends ten personal emails for every one work email. InBarbulescu v Romania an employee was dismissed having used the company’s internet to send personal messages during working hours. The Court held that the employee’s rights under Article 8 of the European Convention on Human Rights had not been breached. Article 8 protects the right to respect for private/family life and correspondence.

The employer monitored the employee’s use of the internet, informed him of this fact and dismissed him (in accordance with their policies) when they discovered various personal messages sent during working time.  The discovery was accidental – i.e. the employer was not purposely seeking out personal messages.  The Court held that there was no breach of Article 8 on the basis that it was reasonable and proportionate for the employer to be able to verify that workers were in fact working during working hours.

Probably time I go and check our own email policy – but not until I’ve emailed the lads to tee up Friday pints…

Jack Boyle
Senior Solicitor – Employment Law

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