Bosses have the right to monitor their workers' messages - but there's a catch
You need to have the right policies in place and make sure employees know about them.
MANY WORKPLACES IN Ireland use instant-messaging facilities, which can be a good tool in open-plan offices and where employees may be working remotely.
Until recently, there was uncertainty as to whether employers could control their employees’ instant-message and email communications – particularly when there was suspicion that the business’s resources were not being used solely for work purposes.
However, the European Court of Human Rights judgment of Barbulescu v Romania, has confirmed that it is legal to monitor and control employees’ communications - provided the employer has stated policies banning use of instant messaging, and other means of communication, for non-work purposes.
The Barbulescu case
Barbulescu, a Romanian national, was employed as an engineer for a private company and at his employer’s request created a Yahoo Messenger account for responding to clients’ enquiries.
His Messenger communications were subsequently monitored by his employer for a two-week period and it was discovered that he had been exchanging messages with his brother and his fiancée during work hours, and some of the messages were of a sexual nature.
In August 2007, he was dismissed for breaching the company’s policies, which prohibited the use of the company’s resources for personal use.
Barbulescu fought his employer’s decision in the Romanian courts, which held that his human rights had not been violated as the monitoring of his instant messages was the only way in which it would be determined if he had committed a breach.
He brought his case to the European Court of Human Rights, which eventually agreed with the Romanian court’s decision, noting that it was not unreasonable for an employer to check that their employees are actually working during work hours.
The court also noted that the employer had acted fairly as the monitoring of Barbulescu’s personal communications was only used to prove that he had used the company’s resources for his own personal use during work hours.
Accordingly, the court found that a fair balance had been struck between his rights to privacy in the workplace and the interests of his employer.
What does it mean?
This judgment is welcome news for employers as it confirms you are entitled to know if their employees are actually doing work during work hours.
Employers now know that they can control their employees’ use of business’s email and instant-messaging facilities and discipline staff who abuse the business’s facilities.
That being said, employers should not take the judgment as an opportunity to operate a ’big brother’-style workplace. If an employer wants to control their employees’ communications during work hours, then the employer must ensure that they have a properly drafted internet and email policy.
In our experience, employers can fall down on this requirement as even if they have an internet and email policy, often their staff are not aware of its existence as it has not been brought to their attention.
Employers should also ensure that if they do discipline their staff for abuse of the business’s email and instant messaging facilities that the punishment fits the crime. If an employee is dismissed for a minor misdemeanour, that dismissal may be deemed too harsh should the employee subsequently bring a case.
When in doubt, we would always advise employers to seek legal advice before embarking on a course of action that could have a detrimental effect to their business.
Rita Gillen is an employment law specialist with Cork-based Terence J. O’Sullivan Solicitors (TJOS).
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