Face up to Face Book

27|09|07

Employers are becoming increasingly frustrated at the amount of time employees spend on social networking websites, and on sending and receiving personal emails whilst at work. In many cases, employers turn to monitoring the electronic activities and communications of their staff, but as Rosa Fernandez, Partner and Head of the Employment Law Team at John Collins and Partners Solicitors LLP explains, employers need to ensure that any surveillance is justified – and legal.

One of your employees has just updated their facebook page for the umpteenth time this month. It’s hard not to notice when you walk past their desk and they seem to be constantly looking at friend’s photos and profiles.  Your IT department has been keeping an eye on them, and you decide enough is enough; it’s time to make an example of someone.

The situation above could be one of hundreds of cases across the UK. Probably the greatest change in the average workplace in recent years has been the huge increase in the availability of internet and email facilities, which can be, and often is, abused by employees accessing social networking sites such as facebook and myspace, or sending lengthy or frequent personal emails on company time. 

The facebook epidemic is just that, with an estimated 24 million users currently signed up to the site, a figure that is growing by the day. Many employers can see that members of their staff are accessing the site, and feel that their productivity is being affected. The next step would be to get solid evidence, but if an employer does decide to monitor its staff’s electronic activities and communications, they will need to have a very good reason – such as allegations of performance problems, misconduct or harassment - and must know how to monitor in a way which the law allows. If there’s a breach of Data Protection Legislation, any evidence gathered may not be capable of being used in any subsequent court or tribunal hearing, defeating the point of the monitoring exercise – and possibly leaving the company open to paying compensation to disgruntled employees and, dare we say it, lawyers fees.

The law in this area is primarily made up of the Data Protection Act (DPA), though as the provisions of this act can sometimes be rather complicated, it is recommended that employers look to the Employment Practices Data Protection Code; part of which relates to monitoring at work. The aim of this Code is to balance the rights of workers against the needs of employees.

The Code recommends that before monitoring, employers identify the purpose of the monitoring, and carry out an assessment to determine whether its likely benefits justify any adverse impact. Whether facebook use is a reasonable excuse to ‘spy’ on an employee is debatable – a more sensible option would usually be putting in IT restrictions to ensure such sites are not accessible at all, rather than going to such drastic measures. 

However, if an employer is satisfied they have the relevant authority, reasonable efforts must be made to inform people about the monitoring, by, for example, putting up notices on notice boards, bulletin boards, intranet and regular internal emails, updates and reminders. Where possible, policies should be clearly incorporated into all contracts with employees so that there can be little discrepancy as to exactly what the rules are. Good practice is to have fact that monitoring will be carried out recorded in a document which the employee has signed. This can avoid the employee seeking to argue that the fact monitoring was taking place had not been brought to their attention.

It must be kept in mind that an employers’ ability to monitor is also somewhat restricted in the case of public sector employers by the provisions of the Human Rights Act, in particular, the right to respect for private and family life, home and correspondence. A recent case in Wales decided that the monitoring of a college employee’s email, phone and internet use was a breach of her human rights, and she was awarded €3,000 in damages by the European Court of Human Rights.

If an employer does monitor in a way which is deemed to be inappropriate, and is found in breach of the DPA, this can give rise to a criminal charge! They could be tried in either a Magistrates or Crown Court, depending on the type and severity of the offence. Whilst the maximum fine that can be issued in a Magistrates Court is £5,000, in Crown Court, the fine that can be levied is unlimited.

The fact is that email is quickly replacing letters as the most effective and cost efficient form of communication, and internet use is on the increase. With online research becoming more and more vital to companies, and therefore making internet provision essential, not just a privilege, the best advice which can be offered to employers, is to be clear and concise in communicating what is or is not acceptable, and to follow the guidelines below:

• Monitoring should only be undertaken as is necessary in the circumstances.
• Monitoring must be fair; an employer must have good reason, and it must be minimal and specific.
• The method for monitoring should be as unobtrusive as possible.
• Employers must make reasonable efforts to inform their staff that monitoring may be carried out.
• The evidence must be dealt with in line with the DPA and the Code.
• Covert monitoring should be avoided where possible, and is particularly restricted under the DPA and the Code. This form of monitoring should only be considered, in practice, for the detection of serious crime.

For further information on the DPA, email and internet monitoring, or any other employment law issues, please contact Rosa Fernandez on 01792 525411 or email rosa.fernandez@johncollins.co.uk