Employers face stricter controls on private internet monitoring

Recent news headlines have warned employees that social media chat and email conversations at work are open to monitoring by the boss, following a recent ruling by the European Court of Human Rights.

But experts say that the headline writers have missed the point, as the ruling in Bărbelescu v Romania puts greater pressure on employers to justify any monitoring of private messages, rather than any relaxation.

The ruling did allow that companies have a right to monitor internet usage by employees during working hours, but only under very clear circumstances. In this case, an employee had been fired for using an instant messaging service for personal use, in breach of internal policy. Mr Bărbelescu had created a Yahoo Messenger account at his employer’s request so he could respond to enquiries from clients, but when the employer monitored the chats over a week-long period, personal messages were found and his employment was terminated.

Following a number of court hearings in Romania, the case went to the European Court to decide whether the employer’s actions had breached Mr Bărbelescu’s right to respect for his private life and correspondence under Article 8(1) of the European Convention of Human Rights (Article 8).

The ECtHR ruled that Article 8 was engaged, so if the employer did look at the Yahoo Messenger chats, such action had to be proportionate to the situation. They ruled that because of the particular circumstances in this case there was no violation of Article 8, as it was not unreasonable for an employer to verify that employees are completing their professional tasks during working hours. The decision relied, importantly, on what Mr Bărbelescu had told his employer, which was that the account contained client-related communications only.

“This ruling doesn’t give any new powers to employers,” explained employment law expert Jane Crosby  of Hart Brown solicitors, “Rather, it has emphasised that workplace monitoring should only take place within very controlled circumstances.

“It’s not enough to simply tell employees that monitoring will be taking place. Employers who monitor internet, email or social media usage are processing personal data and so they must comply with data protection requirements. Policies should be in line with the Employment Practices Code from the Information Commissioner, which requires employers to give a reason for any monitoring, set out how the information will be used, who will have access to it and how it will be safeguarded.”

Where policies are strict in setting out no personal usage, this can be easier to implement than allowing for limited personal use, where the boundaries need greater definition.  One option is to encourage employees to use their own devices for private use, but that requires a clear BYOD – ‘bring your own device’ – policy alongside. With BYOD, employees may also need reminding that unless they use their own data connection, any content that uses company wi-fi could be monitored, if that’s the policy.

She added: “The important thing is to get the balance right between the rights of the employee and those of the employer.”

 

This information is not intended as legal advice

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Jane Crosby

Partner, Dispute Resolution

Jane is an employment and commercial litigation solicitor of more than 15 years' experience. Prior to entering the legal profession, Jane was employed in the...

Partner, Dispute Resolution

Jane Crosby

Jane is an employment and commercial litigation solicitor of more than 15 years' experience.

Prior to entering the legal profession, Jane was employed in the aviation industry. This experience is appreciated by many of Jane's clients who note that she is able to take a commercial and pragmatic approach to any legal issue that they face.

Jane acts for a wide range of individuals and businesses and her areas of specialism include aviation, property related industries and IT. Jane regularly advises on aspects of employment law, such as settlement agreements, employment contracts, policies and procedures, redundancies, equal pay, data protection, issues arising from TUPE and reorganisations, the calculation of holiday pay, bonus and commission payments, disciplinary and grievance issues, dismissal and termination issues, the protection of confidential information and the enforcement of restrictive covenants. Jane gets involved in GDPR training for her clients and she is able to deliver tailored employment law training sessions upon request.

As a commercial litigation lawyer, Jane also deals in shareholder and directors disputes, commercial contract disputes and the enforcement of restrictive covenants.

Jane has been involved in successful high value commercial litigation for clients in the High Courts, she is an accredited mediator and she is a member of the Employment Lawyers Association.

Jane is often asked to write for a number of well known publications, including The Daily Mail, The Telegraph and The Week and she has been interviewed on BBC Radio 4.

Here is small selection of the feedback that Jane has received:

“Jane, I cannot sincerely thank you enough for your wise counsel and am delighted to have made your acquaintance. If I am blessed with a new position somewhere I will hand over my contract in the first instance to you. Likewise, any of my friends, peers, romans and countrymen wanting advice, I will point them in your direction.”

“Jane, you have been most resilient on my behalf for which I sincerely thank you for all your endeavours. I have a tremendous working relationship with Hart Brown and you have undoubtedly compounded this further."

“I appreciated the clarity of advice given at a stressful time”.

“A sensitive and highly professional approach and efficient work in the interests of the client”.

“Your advice, conduct and assistance have been indeed outstanding and very professional but also – and most importantly – very humane”.

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