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Stricter Controls on Employee Monitoring

View profile for Annette Wood
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Recent news headlines have warned employees that social media chat and email conversations at work are open to being read by the boss, following a recent ruling by the European Court of Human Rights.

But experts say that the headline writers have missed the point, as the ruling in Bărbelescu v Romania puts greater pressure on employers to justify any monitoring of private messages, rather than any relaxation.

In this case, Bogdan Mihai Bărbulescu had been fired by his employer for using an instant messaging service for personal use, in breach of internal policy.  At his employers’ request, he had created a Yahoo Messenger account for the purpose of responding to clients’ enquiries but when the employer monitored the chats over a week-long period, personal messages were found and his employment was terminated.

Mr Bărbulescu claimed he had only used the service for professional purposes, however, the company presented him with a transcript of his communication including transcripts of messages he had exchanged with his brother and his fiancée relating to personal matters such as his health and sex life

Mr Bărbulescu challenged his employer’s decision before the courts complaining that the decision to terminate his contract was null and void as his employer had violated his right to correspondence in accessing his communications but his complaint was dismissed.

Mr Bărbulescu then appealed claiming that e-mails were protected by Article 8 (right to respect for private and family life, the home and correspondence) of the European Convention.

However, the Court of Appeal dismissed his appeal ruling that the employer’s conduct had been reasonable and that the monitoring of Mr Bărbulescu’s communications had been the only method of establishing whether there had been a disciplinary breach.

Still dissatisfied Mr Bărbulescu took his case to The European Court of Human Rights but earlier this month the court maintained that there had been no violation of Article 8 and his employer’s monitoring of his communications had been reasonable in the context of disciplinary proceedings.

In light of this latest ruling business leaders might think they have an unfettered right to undertake workplace monitoring. However, the right to monitor employees must be carefully balanced against the right to privacy and a clear policy on personal use of the internet should be in place. It’s not enough to simply tell employees that monitoring will be taking place.  Employers who monitor internet, email or social media usage are processing personal data and so they must comply with data protection requirements.  Policies should be in line with the Employment Practices Code from the Information Commissioner, which requires employers to give a reason for any monitoring, set out how the information will be used, who will have access to it and how it will be safeguarded. The policy should also make it clear that failing to comply could result in disciplinary proceedings, up to and including dismissal.

Where policies are strict in setting out no personal usage, this can be easier to implement than allowing for limited personal use, where the boundaries need greater definition.  One option is to encourage employees to use their own devices for private use, but that requires a clear BYOD – ‘bring your own device’ – policy alongside.  With BYOD, employees may also need reminding that unless they use their own data connection, any content that uses company Wi-Fi could be monitored, if that’s the policy.

If you are reading this and thinking you need to introduce a policy or beef up an existing one, I would urge you firstly, to get professional advice from an employment law expert and secondly, to involve your employees in the process by sending out a draft policy for consultation and allowing them 28 days to respond with any comments.

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