A recent case in the European Court of Human Rights (ECHR) has been big news in the past week and heralded by some as a victory for the employee in their right to expect privacy whilst at work.

The facts are relatively straightforward

An employee was authorised (and indeed requested) by his employer to set up an instant messenger account to deal with customer queries. The employer made clear that it monitored use of the company’s IT system and that personal use was strictly prohibited.

It reiterated this through a company circulation which contained the warning:

“The employer has a duty to supervise and monitor employees' work and to take punitive measures against anyone at fault! Your misconduct will be carefully monitored and punished!"

Despite the warning, the employee used the messenger account to conduct conversations with his fiancée and brother, the content of which was very personal and sensitive. The employer found out about it and presented the employee with the evidence, including a 45-page transcript of his messenger conversations during the week in question.

ECHR conclusion

The Grand Chamber of the ECHR concluded that the employer had infringed the employee’s right to privacy after carrying out a balancing act of the various factors to be taken into consideration.

What seems to be key is that the employee was not told that the content of any messages would also be monitored.

Is this the big employee victory that some are declaring it to be?

Well, not really for employers in the UK.

Hopefully, employers are aware of their obligations when it comes to monitoring their staff. Carefully drafted policies should set out the employer's rights in this respect and regard should be had to the ICO’s Employment Practices Code (pdf available here).

Take a moment to review your existing policy and stand back: if you were one of your employees, would you understand what your employer was monitoring, how it was monitoring it and why? If not, perhaps it's time for an update.

If you need advice in relation to this or any aspect of employment law, please get in touch with a member of our Employment Law team.