As an employer, do you have the right to monitor your employees’ communications at work, or do your employees have the right to privacy? Laura Smith, a solicitor in the Backhouse Jones employment team, has the answer.
The European Court of Human Rights (ECHR) have recently considered this in the case of Barbulescu v Romania. The answer, in short, is that employers do have the right to monitor personal communications subject to ‘reasonableness and proportionality’.
This is an issue which is becoming more common as businesses invest in technology and rely on a number of methods of electronic communication to carry out daily work. E-mails, Internet, text messages, personal messenger are now common methods of communication in the workplace and with that comes temptation to blur the lines between business and personal use during working time.
Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancée and his brother, including messages about his health and sex life. This was in breach of his employment contract. His employer discovered this accidentally and dismissed him as a result. Mr Barbulescu argued that all evidence of his personal communications should have been excluded on the grounds that it infringed his right to privacy.
The European Court of Human Rights held that Article 8 (the right to respect for private and life) was engaged, but that courts were entitled to look at the evidence in deciding whether the dismissal was justified. The Judgement did not reveal the precise content of the personal messages, only the fact that they were personal messages and importantly for employers, the Court recognised the need for employers to be able to verify that employees were completing professional tasks during working hours.
In light of this case, it is worth considering what policies, if any, are in place to support the need for reasonable and proportionate monitoring of personal communications.
Employers are advised to have in place an appropriate IT and electronic systems policy, together with a social media policy. Employee use of social networking or blogging sites is conduct which usually takes place outside work, however this may have a bearing on the reputation of the business in the event, for example, that derogatory remarks are made about the business.
The policies must be clear and the wording must be transparent. Most UK employers tolerate at least some personal Internet and telephone use at work and it is important that the parameters of such use are set out and clear. In another case of Grant and another v Mitie Property Sevices UK Ltd two sisters dismissed for excessive Internet use won their unfair dismissal cases on the basis that the policy relied on by the employer, which referred to personal use being permitted ‘outside core working times’, was not clear enough. A technicality such as this is far from desirable and can easily be avoided, by stating for example ‘personal Internet use is not permitted save for use within the employees lunch hour only’.
It is also important that the policies highlight the right for employers to monitor employees’ use of electronic communications and systems in the workplace and also highlight the sanctions applicable for breach of such policy.
Employers also need to ensure that the policies are applied consistently and fairly to avoid claims for unfair dismissal and discrimination. For example, if the policy states that offensive jokes and images should not be circulated in the workplace, but then permits some employees to send jokes or images, singling out an employee for dismissal on this basis is likely to be unfair.
If you suspect an employee of misuse of electronic communications or misconduct relating to social media, it is important to carry out a full investigation to substantiate the suspicion and gather all available evidence.
The use of technology for carrying out business activity is ever changing and developing in order to improve efficiency. With this advancement however comes a new area to watch. If an employer is unsure as to what parameters they can take action in, I would suggest that legal advice is sought
The note to take from this decision is to give thought to having clear policies in place and avoid disproportionate responses. The case does not give employers a green light to snoop on employees personal e-mails and serious consideration must be given to the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2000, which already place important limitations on employers' power to monitor their employees’ private communications.
It is also important to remember that Data Protection and Right to Privacy is fundamental to the employer/employee relationship. There is important guidance for employers on how to comply with data protection principles in the context of e-mail and Internet monitoring which is the most common problem area and it is advised that legal advice is sought before embarking on action against an employee where this could be a concern. When investigating such matters, all information and specific personal content should be kept confidential between those dealing with the investigation, disciplinary and appeal only.
Laura Smith Laura joined Backhouse Jones in 2008 having studied in Liverpool to obtain her LLB (Hons) degree in Law. Laura advises on a broad range of commercial disputes ranging from contracts of carriage issues, debt recovery, sales of goods and services, HM Revenue & Customs disputes, and high value recovery and loss of use matters for clients.
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