According to a recent FOI request made by BBC Radio 5 live, last year there was a rise in the number of UK council staff suspended after being accused of breaking social media rules. Many employers, both in the public and the private sector, now monitor staff use of social media within the office environment. The possibilities are endless but care must be taken not to overstep the legal limits.
All employers have to respect their employees’ right to privacy under Article 8 of the European Convention on Human Rights (ECHR). This means that any surveillance or monitoring must be carried out in a manner that is in accordance with the law and is necessary and proportionate (see Copland v UK (3rd April 2007 ECHR))
A January 2016 judgment of the European Court of Human Rights show that a careful balancing exercise needs to be undertaken when applying the law (Barbulescu v Romania (application 61496/08). In this case, the employer had asked employees such as the applicant to set up Yahoo! messenger accounts for work purposes. Its policies clearly prohibited the use of such work accounts for personal matters. The employer suspected the applicant of misusing his account, so it monitored his messages for a period during July 2007 without his knowledge.
The employer accused the applicant of using his messenger account for personal purposes; he denied this until he was presented with a 45-page printout of his messages with various people, some of which were of an intimate nature. The employer had also accessed his private messenger account (though it did not make use of the contents).
The applicant was sacked for breach of company policy. When he challenged his dismissal before the courts, his employer relied on the print out of his messages as evidence. He argued that, in accessing and using those personal messages, the employer had breached his right to privacy under Article 8 ECHR.
The Court accepted the applicant’s privacy rights were engaged in this case. However the employer’s monitoring was limited in scope and proportionate. It is reasonable for an employer to verify that employees are completing their professional tasks during working hours. Key considerations were:
- The emails at the centre of the debate had been sent via a Yahoo Messenger account that was created, at the employer’s request, for the specific purpose of responding to client enquiries.
- The employee’s personal communications came to light only as a result of the employer accessing communications that were expected to contain only business related materials and had therefore been accessed legitimately.
- The employer operated a clear internal policy prohibiting employees from using the internet for personal and non-business related reasons.
- The case highlights the need for companies to have a clear internet and electronic communications policy and the importance of such a policy being communicated to employees.
When monitoring employees, the employer will inevitably be gathering personal data about employees and so consideration also has to be given to the provisions of the Data Protection Act 1998 (DPA). The Information Commissioner’s Office’s (ICO) Employment Practices Code, includes a section on surveillance of employees at work. In December 2014, Caerphilly County Borough Council signed an undertaking after an ICO investigation found that the Council’s surveillance of an employee, suspected of fraudulently claiming to be sick, had breached the DPA.
Compliance with the DPA will also help demonstrate that the surveillance is human rights compliant since protection of individuals’ privacy is a cornerstone of the DPA. Of course the data protection angle will bite harder when the new EU Data Protection Regulation comes into force in 2018. Failure to comply could lead to a fine of up to 20 million Euros or 4% of global annual turnover.