There has been a lot of press attention this week following a decision from the European Court of Human Rights which, if some of the headlines are to be believed, now grants employers unfettered access to employees’ private email and social media communications.
But does it?
Bărbulescu v. Romania, has some important distinguishing features. The emails at the centre of the debate had been sent via a Yahoo Messenger account that was created, at the employer’s request, for the specific purpose of responding to client enquiries. The employee’s personal communications came to light only as a result of the employer accessing communications that were expected to contain only business related materials and had therefore been accessed legitimately.
The employer in question operated a clear internal policy prohibiting employees from using the internet for personal and non-business related reasons. The emails showed that the employee had breached the employer’s rules on several occasions by sending information about his health and personal life to friends and family members via the employer’s Yahoo account. Under the employer’s disciplinary rules, those apparently “private” communications were evidence of misconduct on the part of the employee that rendered him liable to dismissal.
he employee complained that the employer had breached his right to private life and correspondence. Although the Court accepted that the employee’s privacy rights were relevant and important, it also accepted that it is reasonable for an employer to verify that employees are completing their professional tasks during working hours.
This is not new. Employment law in the UK operates many rules designed to strike a balance between upholding employee privacy rights with the employers need to safeguard communication systems from misuse. The decision of the European Court provides helpful guidance and simply clarifies and confirms several of those existing principles.
The case does however highlight the need for companies to have a clear and coherent internet and electronic communications policy and the importance of such a policy being communicated to employees. Where employers wish to undertake more robust or regular monitoring of employee communications, it is vital that the rules are clearly communicated to the workforce and the sanctions for breach made known.
If you would like further information on internet usage policies or any other employment issues please contact Ann Frances Cooney, Senior Associate, Employment on 0141 574 2312 or AFCooney@hbjgateley.com