Tips & tricks for the employer’s right to monitor the employee’s use of online communications

A recent decision of the European Court of Human Rights ( ECHR ) has rekindled the debate about the right of the employer to monitor its employees’ use of electronic devices, internet and email.

Case summary

A Romanian company answered its client’s requests and questions via a Yahoo Messenger Account. This company had a policy on the use of electronic devices and internet, which provided that email and chat could only be used for professional purposes. On the occasion of a control, which lasted one week, carried out to verify the compliance of the employees with this policy, the employer discovered that one of its employees had exchanged emails with its brother and fiancée. The employee denied that he used the email for private purposes and as a result he was dismissed. The Romanian judge ruled that the employer was entitled to monitor its employees’ compliance with the policy. Subsequently, the dismissed employee brought his case before the ECHR.

The ECHR ruled that the employer had remained within the limits of its disciplinary (monitoring) powers, as (Romanian) employment law allowed employers to access their employees’ email accounts. The employer could assume that emails would only be used for professional purposes as this was set out in the relevant company policy and as the employee claimed that he had used the emails for professional purposes only. The ECHR outlined that it is not unreasonable for an employer to verify if its employees are completing professional tasks during their working hours.

Impact case law in Belgium

The ECHR case law will not have much impact for Belgium: it is already accepted that when employees use company online communications for professional reasons, employers are entitled to monitor the correct use of the company property.

Recommendations for employers in Belgium

In practice, it is not always easy to organize such monitoring. The general privacy principles in the employment relationship are vague and rather difficult to apply.

Our recommendations below are therefore based on our professional experience and intend to offer employers a practical way of applying these principles, within the limits prescribed by law and case law.

1. First of all, employers are to decide whether employees use company online communications tools (mailbox, account, chatbox) for professional purposes only or also for private purposes (possibly subject to certain conditions (f.i. only in breaks, from a specific computer)). It is clear that monitoring is easier when the use of online communication is limited to professional purposes: the employer can expect that there is no personal use and the employee should not have any reasonable expectation of privacy on his private communications.

Note that in case only professional use is allowed, case law does not accept that the employee is completely excluded from any private communication at work. This means you should allow that an employee uses its (private) phone or a private account to have a private conversation/send a private communication. Insofar this private communication remains exceptional and does not obstruct the normal functioning at work, such use is accepted.

2. Employers who want to monitor the use of online communications should: 

a) Provide for a clear written company policy (employment agreement, work rules, policy) which indicates:

i. the (professional and/or private) use that might be made of electronic devices, internet and email;
ii. occasional monitoring might occur and what means will be applied for this monitoring;
iii. the purposes of such control (f.i. productivity, preventing damage to IT systems, compliance with policy); and
iv. breaches of policy could imply several (disciplinary) sanctions.

b. Inform and from time to time remind employees of this policy. Employees’ consent is not required, but they must be sufficiently informed about the rules applicable within the company; 
c. In case of suspicion that an employee does not comply with the company policy, proceed in accordance with the procedure set out in CBA n°81;
d. In case they allow (reasonable) private use:

i. Limit monitoring as much as possible to professional communications; therefore
ii. Introduce systems that clearly indicate the nature of the communication (f.i. ask employees to indicate in the subject of their emails, if these are private or professional);
iii. Focus monitoring to meta data, such as frequency and avoid as much as possible, reading employees’ private messages, in case private communication is monitored. Indeed reading private emails is strictly exceptional and will only be considered as an allowed restriction of the employee’s privacy right in very limited situations.

e. Notify the Privacy Commission of the monitoring.