Recruitment bosses should ensure effective policies are in place to enable monitoring of consultants’ email communications, while all recruiters should advise candidates to be discreet when contacting prospective employers, employment lawyers say.

The advice follows a ruling laid down by the European Court of Human Rights (ECHR) on Tuesday, which means employers can read workers' private messages sent via chat software and webmail accounts during working hours.

This is particularly the case if agency bosses suspect a consultant is seeking a move to a rival recruiter, but does not apply to communications on personal equipment such as mobiles, according to legal experts.

Sarah Rushton, employment partner with solicitor Moon Beever, says employers should not think they now have the right to monitor all employees’ private communications.

But this may be justified if the employer has legitimate grounds for suspecting the employee is preparing to compete and potentially breach their post-termination restrictions or obligations of confidentiality. 

“An employer will not only have to take into account matters such as privacy, but also issues like data protection,” she said. 

“The employer should make it clear from the outset that its email systems and emails may be monitored and that employees should have no expectations of privacy,” Rushton added.

That policy is crucial, according to Jacqueline McDermott, consultant solicitor at law firm Keystone Law, as it could mean employers run into difficulties if no IT policy is in place and they plan to monitor employee’s use of email or internet communications.  

Meanwhile Christopher Tutton, partner at law firm Irwin Mitchell, warns the case also has implications for how candidates communicate with prospective employers and advised recruiters to encourage candidates to use discreet methods of communication that cannot be tracked.

But Alison Treliving, head of Manchester labour and employment practice at law firm Squire Patton Boggs, warns the ruling is limited to messages sent on the employer’s equipment and where the employer is shown to be acting reasonably in checking that the employee is doing the job they are paid for rather than what the Court called “cyberslacking”.

“It does not allow the employer to seize the employee’s personal mobile phone and go through its contents on a whim, as some headlines suggest,” she added.

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