Monitoring Employees - Messages, A Warning

A recent ruling by the European Court of Human Rights has agreed with an employee’s rights to privacy under Article 8 of the European Convention, (which guarantees the right of respect for privacy, family life and private correspondence) when using an online chat service on company equipment for personal use. How should employers respond to this ruling and what policies should they have in place?

In this particular case, Bogdan Barbulescu, a Romanian engineer at a sales company was fired after using his Yahoo Messenger account for conversations with his fiancée and brother. Mr Barbulescu successfully argued that although the company banned the use of office resources for personal matters, it had infringed his rights by spying on his messages.

The first thing for employers to do in light of this ruling is to check your IT policy. If a business wants to check their employees’ communications on work devices, it should be clear to staff about the extent to which emails or messages will be monitored and why. In Mr Barbulescu’s case, this was done without his knowledge.

Make sure all staff are informed of and have signed a copy of your company policy on the use of all IT equipment, telephones and other devices and make sure all new starters to the business are aware of the policy. 

Consider allowing some limited use by employees during work breaks and encourage them to mark any private communications as private.

Employers can still monitor emails to detect and prevent crime such as fraud or downloading and distributing obscene or illegal materials. Employers cannot track or ‘hack’ into personal devices if they are used in the workplace. If the employer suspects the employee of any banned use during working hours, they should follow their disciplinary procedures.

Amanda Finn comments: “It is always better to prevent any issues like this from arising in the first instance and the way to do that is to have clear and up to date policies, which are clearly communicated to all staff and updated regularly. In the changing way we are all communicating, employers may want to consider that some personal use will be part and parcel of the working day and people need to be able to communicate with loved ones during their breaks or in the case of an emergency. Offering some flexibility might encourage sensible use, but with the caveat that it could be reviewed and withdrawn at any time if abused.”