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Not in my time! Workplace Privacy laws

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‘Not on my time’ – new ruling highlights employer rights during working hours

The European Court of Human Rights’ recent ruling that employers have the right to look on staff's work emails and electronic messages, will mean that companies across the UK will have to be clear on when employers can send personal emails from their work accounts.

Romanian engineer Bogdan Barbulescu was fired for sending personal messages to his fiancée on the Yahoo message account he had been instructed to set up for work. Although Barbulescu had been made aware that the account would be monitored and that all members of staff were banned from sending personal messages while at work, he argued that his employer’s decision to end his contract was based on a violation of his rights to private correspondence.

Having lost the case in Romania he took it to the Human Rights Court in 2008. However last week the court ruled that it was not "unreasonable for an employer to want to verify that their employees are completing their professional tasks during working hours."

Says Parveen Bunglawala, Associate Commercial Solicitor at FDR Law, ‘This case highlights how workplace privacy is becoming increasingly complicated as 24-hour access to technology and the rise of the Bring Your Own Device to work movement blurs the lines between work and personal life.’ 

‘Yet while this may pose new questions for employers, the answers are essentially the same as they always have been; communicate policies properly, make allowances for the fact that home life inevitably creeps into the workplace from time to time, and take a reasonable and proportionate view about employees looking to do personal things on the firm’s time. This case is a reminder that whilst employers will wish to maximise business opportunities social media provides, they must also be pro-active and set guidelines regarding private usage during working hours.’ 

So what do businesses need to be aware of when managing the use of personal email and social media usage in the workplace in order to balance employee privacy with company rules?

Ten considerations for employers

  1. Clear guidance on sending private emails and the use of social media; the monitoring process you carry out to ensure the policy is being adhered to; and the sanctions of such actions should be given in company policies.
  2. To minimise bad-feeling and the ‘Big Brother’ effect, be very clear about your reasons for monitoring. 
  3. If you’re likely to read personal emails, employees should be told that’s the case before they’re read – not after. Similarly, think about whether you will allow private messaging or other use of social media. If usage is going to be monitored, again employees should be told that up front.
  4. If you are monitoring usage then the law requires that you make it clear that this is happening to all employees without exception. 
  5. Encourage workers to mark messages as 'private' and 'personal' to help them protect their communications and make it clear that they should not open personal messages during working hours.
  6. Mr Barbulescu sent messages during working hours via a Yahoo Messenger account which he had set up for the purpose of responding to client enquiries only. Ensure you have clear policies in place prohibiting the personal use of company resources.
  7. Global employers should take the time to review all communications policies to check they include clear usage statements, which comply with local laws.
  8. Bear in mind that home life inevitably creeps into the workplace from time to time, and take a reasonable and proportionate view about employees looking to do personal things on the firm’s time.
  9. Consider whether or not informal action is sufficient to deal with any concern. 10. Policies should be non-contractual, allowing greater flexibility to change or update them in due time.

If you need further employment advice please contact FDR Law on 01925 230000.

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