Sunday 22 September 2019

Can employer’s really monitor our personal accounts?

The case has garnered huge interest across Europe.
The case has garnered huge interest across Europe.

Michael Cogley

On Tuesday, the European Court of Human Rights ruled in favour of a Romanian employer who had sacked a worker after monitoring his messages for a week.

Bogdan Mihai Bărbulescu was fired after he was found to be sending messages of personal matters through Yahoo Messenger, an account he was asked to set up by his company.

The case has garnered huge interest across Europe, with many workers now quizzing what can and cannot be monitored.

Speaking to the Irish Independent, senior associate at Leman Solicitors, Síobhra Rush, explained what happened.

“In this particular case, what happened was the employer had asked the employee to set up a Yahoo messenger account for work purposes. They had then discovered that he had been using it for personal reasons. The company then engaged in disciplinary action and terminated his employment,” Ms Rush said.

Following his sacking Mr Bărbulescu went on to challenge his dismissal in the Romanian court before taking it to the European Court of Human Rights on the basis of a breach of European convention of human rights in relation to the right of privacy.

“The court said the employer having access to the messenger account and using the transcripts of his communications as evidence was not a violation to the right of privacy.”

In Ireland Ms Rush believes that a more lenient policy is implemented for usage of work devices.

“In Ireland a lot of employers would probably turn a blind eye to the fact that a lot of employees use their work emails for personal purposes.

“Most employers should have an information and communication technology policy in place, including a right to monitor and then setting out an accessible usage policy in terms of not sending inappropriate emails,” Ms Rush said.

Can employers monitor private accounts?

Unfortunately this isn’t a simple yes or no answer. Like most legal issues there are grey areas and Ms Rush says that a lot of it depends on the employer’s information and communication policy.

“It’s not necessarily true in this case (that they can monitor personal accounts), but let’s say for instance, if an employer has a policy that says we will be monitoring all of the internet usage and particularly here where they say this is for work purposes only and not personal use.

“Does it mean if you’ve used your work computer with your Gmail account can an employer access that? I wouldn’t say so, but I wouldn’t like to say that it’s definitely not the case either.

“Let’s say the employer has a policy that says where you use work equipment for personal use, that use will be monitored. Then maybe.

“It’s basically about balancing the employee’s right to privacy versus the business interest of the employer.

“There isn’t an automatic right to monitor your usage. Every employer should have a policy in place saying usage will be monitored, because where they don’t have it then you’re into a case where the employee’s right to privacy is somewhat strengthened. Their expectations on their privacy have not been reduced by the fact that there’s a policy there that has made it clear that monitoring takes place.”

Legal privacy issues have become extremely controversial in recent times especially surrounding the workplace. Ms Rush expects more cases similar to this one as work culture changes.

“The fact that people are working longer hours, they’re more connected and the line between personal and private usage is becoming more and more vague.”

No green light for employers

Meanwhile Breda Cullen, managing partner at employment law firm, HR Team, warns that the ruling doesn’t automatically give employers a ‘green light’.

Ms Cullen said that while the ruling will give employers confidence in their efforts to manage staff internet use it doesn’t automatically give employers the go ahead to monitor all employee communications online.

“Unauthorised internet use by staff, including time spent on social media and messaging, can be very costly to employers in terms of lost working hours and decreased productivity.

“Employers should proceed with caution and, if in doubt, seek professional advice. Any action needs to be backed up with a clear policy which must be adhered to by both employee and employer,” Ms Cullen said.

Speaking about moves that can be made to reduce risk associated with monitoring Ms Cullen said: “These include the implementation of a robust policy which prohibits the use of certain internet sites and messaging apps; clearly communicating this policy to all employees; and ensuring employee handbooks and contracts are fully up to date.”

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