Employers. . . Do you have an electronics communication policy?
Andrew Egan, an employment lawyer with Charles Lucas & Marshall, explains the significance of a court case which examined access to workers' private messages sent via chat software and webmail accounts.
Employees' use of email and the internet - including their activities on social network sites and blogs - can lead to performance issues, damage to the employer's reputation, loss of business and various legal liabilities.
There are a number of ways in which employers may monitor their employees' email content and traffic, internet and telephone use in the workplace.
The importance of providing information to employees about monitoring means that employers should have an electronic communications policy. The policy should actually extend beyond monitoring, to also set standards, cross-reference other policies and address the risks arising from email use and internet access, including:
Constructive dismissal claims
Discrimination, harassment and defamation claims
Intellectual property issues
Loss of productivity
In a recent case, an engineer, Mr Barbulescu, was utilising his business messenger account to send communications to his family and partner, including very personal content!
His employer discovered this by accident and dismissed him. After going through the Romanian Courts, he took his case to the European Court of Human Rights arguing that his right to respect of his private life and correspondence was breached by his employer monitoring his personal communications at work.
The Court did not agree, recognising the need for employers to be able to verify that employees are completing professional tasks during working hours, subject to proportionality.
The court’s ruling does not, however, give employers the right to force access to the personal social media accounts or other communication accounts of workers, particularly when used on their own devices, although, there is scope for access being monitored if during work hours and on a work device.
Most employers are to a degree flexible about employees using their computers and the internet to conduct personal tasks as long as it is in break times and is not excessive.
The judgment highlights the need and importance of ensuring that appropriate and lawful employeemonitoring policies are in place, are covered in the employee’s employment contract and that they are communicated to employees and adhered to.
Merely letting staff know that their activities are under surveillance may not be enough to provide the employee with sufficient information about the nature, scope and effect of the internet monitoring policy. A policy should identify the minimum element of an internet usage and surveillance policy, including specific misconduct being monitored.