There has been a lot written recently about the right to privacy at work. This has been brought back into the spotlight by the case of Bărbulescu v Romania.
By way of recap, Mr Bărbulescu was an engineer working for a heating company. At his employer’s request he set up a Yahoo Messenger account to deal with client enquiries. Subsequently, Mr Bărbulescu’s employer informed him that they had monitored his Yahoo Messenger communications over the course of a week and that he had used it for personal purposes in contravention of the employer’s internal rules, which prohibited any personal use whatsoever of the company’s computers, internet or telephones.
Mr Bărbulescu was dismissed for personal internet use at work, contrary to the employer’s internal rules. As part of its investigation, the employer accessed his private messages sent to friends and family relating to personal matters and discovered he had used the internet for personal purposes, contrary to internal regulations. These messages were used in the disciplinary proceedings as well as in the subsequent court cases.
Mr Bărbulescu argued that the Romanian courts should have excluded all evidence of his personal communications on the grounds that it infringed his rights to privacy. The Romanian courts upheld the employee’s dismissal, and so he applied to the ECtHR. The Court agreed with the Romanian court and held that the monitoring and use of the personal messages was a proportionate and reasonable interference in his Article 8 rights.
This case raises numerous issues for employers and we address how employers can deal with this elsewhere. However, this is a symptom of a problem at work which I refer to as the blurred line, i.e. the blurred line between an employee’s work life and the employee’s home life.
Roll back 20 years to when I qualified as a lawyer. In those days there was a very clear distinction between private life and work life and the two areas did not cross very often. When you were at work, you worked and when you were at home you didn’t. The main issue at the time for employers was whether employees could use their telephones for private calls. Many employers had a rule which said employees could only use the work telephone calls for private use “in an emergency”. As emails started being used, the next question was whether an employee could use the email system for private messages. In 20 years, the IT world has changed beyond all recognition and these growing pains have caused problems.
Employers and employees now grapple with issues such as:
- Can employees use employer systems for private use and if so, when and how much?
- How will the employer monitor private use, or a rule outlawing private use (bearing in mind the complexity of the law relating to monitoring)?
- Given that most employees these days will have a smartphone or tablet, does an employer (or employee) need to worry about this anymore?
- Is it easier to simply outlaw the private use of employer systems and instead allow/instruct employees to use their own devices? Most employers allow employees to access Wi-Fi at work.
- If employees use their own devices at work, how will this be controlled? Can employees have Facebook open at all hours or just during break times?
- How do you control social media and comments made by employees about employers and co-workers? Given that many people have their co-workers as Facebook friends and Twitter followers, what they say about the employer, co-workers or customers is often seen very widely.
Employees regularly get themselves into hot water over this issue. I wonder why they do it in the age of large screen smartphones and tablets. As an employee, if you carry out your private business on your private device, your employer won’t have access to what you are doing. Why do this on your employer’s systems. It still surprises me that employees do this on their employer’s systems knowing that it can all be monitored. Employees need to also give some thought to what they are saying before tweeting or posting something on Facebook.
My view is that the more the line gets blurred, the harder all of this is to control. Employers need to get to grips with this and put in place sensible rules to deal with it. Managers and employees need to know where the boundaries are and be trained on them. Employees want to be treated like adults and they will (in the majority of cases) respect clear and sensible rules. If you address this, the blurred line can come a little more into focus.