IVWhen an employer may check an employee

In 2007 a sales engineer in Romania was dismissed after his employer read messages he had sent from a work chat account, among them messages to his brother and his fiancée. The company had forbidden personal use of its equipment, and he had been told so. He took the case all the way to the European Court of Human Rights in Strasbourg.

In September 2017 the Grand Chamber found in his favour. An employer’s instructions, the judges wrote, cannot reduce private social life in the workplace to zero.¹ Respect for private life and for correspondence continues at work, even if it may be limited where that is necessary.²

An employer’s instructions cannot reduce private social life in the workplace to zero.

The questions the court asked

The judgment is remembered for the questions it put to the employer, and they make a good test for any check on an employee today. Was the employee told in advance that monitoring was possible, and how far it would go? Was there a genuine reason for it? Could the same aim have been reached in a less intrusive way? What happened to the information afterwards, and who saw it?

A check that stays within the law

Two years later, in López Ribalda and Others v. Spain, the same court accepted hidden cameras in a supermarket where the manager had a reasonable suspicion of serious theft, because the measure was limited in place and in time. The two cases point the same way: a check needs a concrete reason, it must be proportionate, and it must end when its purpose has been served.

In practice, this is what lawful work for an employer looks like. When an employee on sick leave is suspected of working for a competitor, an investigator can observe what happens in public places and record it with dates and times. When goods or data go missing, the investigation looks at the people and processes that had access to them, documents the facts and leaves the decisions to the employer and their lawyer. Company phones, computers and vehicles can be monitored when staff have been told about it beforehand and the rules of data protection are followed.³⁴

What we will not do for an employer is what we would not do for anyone: read private messages, follow someone into their private life, or collect information that has nothing to do with the suspicion.