Q: I am thinking of monitoring my employees’ emails in the workplace. What do I need to consider before putting this in place?
A: With the increased use of electronic communication, employers might be finding it more difficult to ensure their business is running as efficiently as possible. Monitoring the activities of staff through facilities such as work email accounts is an effective way of checking they are focusing on the business during their working hours. However, there are several considerations that employers need to be aware of to carry this out lawfully.
The first step before introducing monitoring is to ensure there is a legitimate, objective business reason for monitoring employee communications. Employers should review whether this business reason can be achieved through another, less intrusive method or if monitoring is the only proportionate measure.
Employees should also be informed of monitoring before this takes place. An effective way of doing this is through introducing a monitoring policy, either on its own or as part of current internet and email use policies.
This policy can state that monitoring takes place, what communication will be monitored, how it is done and the extent. The reason for monitoring and the consequences of breaching the rules can also be set out to ensure full transparency.
Even while at work, employees have a right to respect for a private and family life under article 8 of the European Convention of Human Rights. This means managers need to act proportionately and fairly when implementing monitoring to achieve the correct balance between business needs and employee privacy.
A recent European Court of Human Rights case, Bărbulescu v Romania, found the employer had not achieved this balance correctly because they were accessing and reading their employee’s personal emails that had been sent through a work account.
In most cases, it will be sufficient to see the date, time and recipient/sender of the email to determine whether it relates to work or not and then the employee themselves should be spoken to about the content. Reading these emails, especially where they contain private or potentially intimate content, is likely to breach their privacy.
When monitoring is introduced, employers should continually review whether this is proportionate. In cases where suspicions have been raised about the email activity of a member of staff, employers should assess whether they can use a different method to achieve the same result.
For example, a manager might choose to hold a meeting with the employee first to discuss their email use and ask them whether they have been using this for business purposes or not, rather than going straight to their email account to look in their inbox or sent items.
Monitoring is an effective method for employers. However, it is important to inform employees in advance and monitor in a fair and proportionate manner to avoid breaching privacy rights.
Peter Done is managing director of law firm Peninsula
