Employment law: privacy in the workplace
A ruling this year by the European Court of Human Rights (Barbulescu v Romania) held that it is not a breach of an employee’s privacy for the employer to view his or her private email. So when can and should an employer look at an employee’s private email, social media accounts and internet history, and what can they do if they don’t like what they see?
Employers needs clear rules
First of all, the decision in Barbulescu depended on the existence of contractual rules which said that the employer could view the employee’s email. So there must be a clear statement in the contract or ICT and Social Media Policy which entitles the employer to view all email sent on the employer’s email account and to view an employee’s internet history. Make sure that employees know about these rules by circulating the policy and providing training.
Why would an employer be interested in an employee’s emails, social media or internet history?
For lots of reasons, in particular, to investigate allegations of:
- Harassment of colleagues or service users;
- Spending too much time sending private emails or browsing the internet for personal use;
- Downloading unlawful material from the internet;
- Sending discriminatory emails; or
- Breaching the organisation’s ICT rules, eg accessing dating websites in work time, forwarding joke emails, online gambling, and forwarding viruses.
Most of my employees communicate by social media not by email – can employers view this?
Obviously you can only view employees’ social media accounts if their privacy settings allow it. But even if they do not, you might be sent copies of extracts by other employees complaining about harassment, or informing you that the employee is criticising the organisation. Employees should be aware that this can be used as evidence against them in disciplinary proceedings. In a 2012 case, Teggart v TeleTech UK Limited, Mr Teggart was dismissed for posting vulgar comments on Facebook about a female colleague and a tribunal said Mr Teggart’s privacy rights had not been infringed and that he had effectively given up his privacy rights in any case since the comments could be copied by others and forwarded on.
Is it OK to check a candidate’s social media profile before recruiting them?
No. It is best to recruit on the basis of objective, verifiable and comparable information. If you do not you will be open to criticism of personal prejudice and legal claims of discrimination and you may also miss out on excellent candidates. However tempting, try to avoid delving into a candidate’s personal life online, just as you would not ask them about this at interview. Professional sites such as Linked In aimed at professional development and employment opportunities are exempt from this.
Employers must act reasonably
Even give the rights described above, employers must still act reasonably. So in deciding whether to discipline or dismiss they must consider, for example:
- Was an employee remorseful and apologised to anyone offended by their actions?
- Did the employee remove offending comments quickly?
- Was there any evidence that an employer’s reputation was seriously damaged?
- Could the employee be expected to have known the impact of their actions?
Overall, a good employer will follow these guidelines:
- Have a good ICT Policy. This should set out clear rules and consequences in relation to using the internet, email, social media, and texting etc, including references to colleagues and the employer.
- Have a good Equality Policy which makes clear that harassment will not be tolerated, including online harassment.
- Circulate policies regularly, provide training and keep policies reviewed and up to date.
- Take prompt disciplinary action were necessary and do not be put off by employees citing privacy rights.
- Investigate any allegations properly and obtain evidence where possible.
- Follow correct disciplinary procedures.
- While dismissal may be appropriate for posting obscene comments about a colleague, or seriously criticising an employer, always consider the circumstances of an individual case before deciding on an appropriate sanction.
Elizabeth Scholes is an independent Employment Law and HR Consultant who specialises in the Third Sector. A former employment solicitor, Elizabeth has worked extensively with charities and voluntary organisations, and has also been a Trustee at two large Birmingham charities.
Elizabeth advises on a wide range of employment matters including contracts, dispute resolution, dismissals, redundancies, and charity restructuring. She also provides HR and employment law training. For further advice and details of Elizabeth’s competitive charity rates, contact firstname.lastname@example.org or 07941 457580, or visit www.escholeshr.co.uk.
This article, by Elizabeth Scholes, was written for the April & May 2016 edition of Update Magazine.