Viewpoint - Monitoring of Private Messages

Viewpoint - Monitoring of Private Messages

  • Date: Monday 25th January 2016

We’re starting the year with a judgement that caused outrage amongst many human rights activist.

In Barbulescu v Romania, the European Court of Human Rights investigated a case of an employer monitoring private Yahoo Messenger posts of a remotely working engineer. Although the account had initially been created to contact clients, the engineer also used it to keep in touch with friends and family, breaching the company’s policy of using equipment for business purposes only.

When the employer dismissed Mr Barbulescu, he claimed a breach of his right to privacy under Article 8 of the European Convention on Human Rights.

The courts disagreed, since Barbulescu had been explicitly told that the Messenger account was only to be used to communicate with clients. Therefore, it could be assumed that the organisation monitored the account as part of their quality assurance programme, not because they intended to spy on their employee.

However, employers are warned not to interpret this judgement too lightly:

  • You are in breach of Article 8 if you do not inform employees of your practices and policies. If it is your intention to monitor all email and internet access, you need to formally inform your employees of this.
  • CCTV monitoring may also constitute a breach of privacy if employees are not informed of it. Employers can advertise monitoring by installing clearly visible signage and via a monitoring procedure or policy.
  • Monitoring must also be reasonable. If you allow private use of the internet during breaks, it is unreasonable to monitor use in order to gain information on your employees. Equally, social media ‘stalking’ can easily lead to harassment claims so be mindful of befriending employees if your company culture does not usually support friendly and familiar relationships.
  • Before dismissing, consider the impact the action has had on your business. Was it a clear breach of procedure? Did the action impact on performance or reputation? Did the employee expose the organisation? If none of these apply, consider a lesser sanction, since courts will questions the reasonableness of your decision.

Employers should also consider the impact on engagement their decisions may have. Although one can understand the decision to dismiss somebody who has, in a short space of time, managed to fill 48 pages of Messenger conversations (as happened in the above case), employers should also consider how much impact the odd private chat realistically has on the daily performance of their employees.

Businesses are becoming increasingly flexible and often the odd private email is compensated for by hours of overtime or out of hours work. As an employer, do you really want to measure performance through presenteeism, rather than results,  and are you happy to create a culture where monitoring replaces, rather than compliments, trust?

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