The interest in the recent case of Barbulescu -v- Romania is phenomenal. My Employment Team colleague Síobhra was asked yesterday to provide legal comment on the matter by the Irish Independent. Click the link to read the article http://www.independent.ie/business/technology/can-employers-really-monitor-our-personal-accounts-34364614.html
It seems that as employees we are now worried what our employers can look at and as employers we are very interested in how we can monitor employees' activities. However the Romanian decision doesn't really change how this issue should be approached in Ireland. The employee was effectively using work time and resources for his own personal use. Most contracts of employment and handbooks in Ireland will advise employees on what is acceptable use and how this use may be monitored by the employer.
Really what this case reminds employers to do is check that they have clearly outlined in their policies the following:
a. whether employees can use any IT systems for their own personal use
b. what is considered to be acceptable and unacceptable use of those systems
c. what type of monitoring the employer may carry out
d. what are the potential consequences of misuse and monitoring results
The case also raises issues around data protection. The Irish Data Protection Commissioner is clear that any monitoring of employees must be notified to employees and the purpose of any monitoring explained to them. For example, if the monitoring is purely to scan for viruses then it would not be appropriate to use the results of that monitoring for performance management purposes.
Data protection law is often seen as a mystical and complicated beast that lurks just under the surface. However in reality its principles are straight forward. Tell people what data you are collecting on them and what you will be using it for. Make sure that the reasons for which you are collecting certain data are justified.
While employees have a right to privacy in the workplace, this has to be balanced with the employer's legitimate business interests. If you don't want employees using work equipment and time for personal use then make this clear to them. Equally for employees the best way to proceed is to assume that Big Brother is watching and to act accordingly. I recommend not using your employer's IT systems to send personal messages about your sex life like Mr. Barbulescu did!
An employers' policies and how those are communicated to staff will be critical in defending any potential claims under employment, constitutional and/or data protection law. We can of course help with that..... contact us here - http://leman.ie/practices/employmentpensions/
“In this particular case, what happened was the employer had asked the employee to set up a Yahoo messenger account for work purposes. They had then discovered that he had been using it for personal reasons. The company then engaged in disciplinary action and terminated his employment,” Ms Rush said. Following his sacking Mr Bărbulescu went on to challenge his dismissal in the Romanian court before taking it to the European Court of Human Rights on the basis of a breach of European convention of human rights in relation to the right of privacy.