When employees first start with a company, many will be issued with a company handbook. This tends to outline the do’s and dont’s of their employer, and usually includes guidelines on the acceptable use of telecommunications, such as email and phone etc. Some employees may believe that despite certain rulings, their communications are still subject to privacy laws even if they choose to ignore their employer’s restrictions.
Recently in a European Court of Human Rights (ECtHR) case, it was ruled that monitoring employees’ private communications in the workplace does not necessarily breach their privacy rights. The case in question, Bărbulescu v Romania centred on Mr Bărbulescu, an engineer in charge of sales, who was employed by a private company in Romania.
At the request of his employer, Mr Bărbulescu set up a Yahoo Messenger account. His employer’s regulations stated that this account was solely to be used for business purposes and any personal use of the account was not permitted.
What steps did the company take?
Bărbulescu’s employer monitored his account over an 8 day period and subsequently accused him of using it for personal matters. When Bărbulescu denied the allegations, his employer presented a 45-page transcript of his communications, of which some were to his fiancée and brother. The employer then dismissed Bărbulescu due to his breach of the policy.
Outcome
With unsuccessful challenges in the Romanian courts, Bărbulescu appealed to the ECtHR. He argued in his appeal that his dismissal was tantamount to a breach of his rights under Article 8 of the European Convention on Human Rights. Article 8 provides employees with a reasonable expectation of privacy at work. However, this right is not always guaranteed.
The ECtHR found in favour of the employer and stated the following:
- The employer had clearly outlined the policy regarding private use of its telecommunication systems.
- It was not unreasonable for the employer to verify the account’s use as it was meant to contain only business-related content.
- The employer did not examine other documents that were stored on Bărbulescu’s computer—just the Yahoo Messenger account.
Best practice, what can your business do?
In order to avoid similar situations from occurring, ensure your company’s policy on the private use of telecommunications systems is crystal clear. It should state in simple terms whether employees may use the system for personal use as well as business. Be sure to also lay out under what circumstances your company has the right to monitor or review their use of it.
Additionally, it may be beneficial to have the regulations reviewed by your company’s employee advisory board. If you are unsure around areas of Employment Law and are in need of advice then why not speak to one of our trained EL advisors at Jelf Risk Management on 0345 040 0002.
Source: Zywave: HR Brief Quarter 1 2016 Monitoring Employee Comms
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