We’re probably all guilty of sending the odd personal message from our work email account or using our employer’s internet. While that is probably not the end of the world every once in a while, what about when it becomes a productivity zapping habit?
Should employees have any expectation of the privacy of those communications? What, as an employer, can you do about it without risking a breach of your employee’s rights? A recent European Court of Human Rights case provides some (limited) guidance…
Mr Marbulescu (“M”) worked for a Romanian engineering company. M set up a Yahoo messenger account in the course of his employment with which to contact customers. He also had a personal Yahoo account.
M was told his communications had been monitored over a week. These showed he had made personal use of the employer’s internet contrary to a strict ban set out in company policy. M denied the personal communications. The company produced detailed transcripts from both Messenger accounts. M was then dismissed. His appeals through the Romanian courts were unsuccessful. M then brought a case against the state of Romania for failure (of the courts) to protect his Article 8 rights to private life and correspondence.
The court decided that it was not unreasonable for an employer to want to verify that employees were completing their professional tasks and found with the domestic courts.
Critically, this case hinges on the facts. It should not be considered a one-way ticket to Spooksville.
It rests on three main points:
- the employee was given notice that monitoring was to occur;
- the employee denied having sent personal messages, so the domestic and the European court concluded that transcription was the only proportionate means to determine the disciplinary issue. The Romanian government contended had M admitted the nature of the messages the courts would have performed a different “balancing act” of rights; and
- importantly, the company’s policy on personal use of internet etc. was very clear.
The court found that Article 8 had been interfered with, but had not been breached.
What should employers do?
Employers are not allowed to “snoop”. We recommend that you:
- Have a clearly worded policy in place for internet/email use. Do you allow access for personal use at all? If so, what is “reasonable” use?
- Tell employees in advance of the possibility of their communications being monitored. Set out your stall in your employee handbook.
- If you are going to monitor, remember four words: transparency, necessity, fairness and proportionality.
- If you find any potentially personal communications speak to the employee first. Give them a chance to explain. Afterwards only take such steps as are reasonable to prove or disprove their statement.