Can you take disciplinary action against your employee by using evidence of personal messages sent via a social media account?

News - 20/01/2016

In the case of Bărbulescu v Romania, the European Court of Human Rights answered this question in the affirmative in circumstances where the Yahoo account had been specifically set up for the purposes of carrying out the employee’s role.

Mr Bogdan Bărbulescu was dismissed from his workplace for acting in contravention of company rules by using his Yahoo messenger account to send private messages to his fiancé and family members during working hours, discussing personal issues such as health and the state of their love lives.

Mr Bogdan argued that by monitoring his personal messages, his employer had breached his rights under Article 8 of the European Convention on Human Rights, the ‘right to respect for private and family life and correspondence’. He argued that the Romanian court should not have allowed his employer to rely on the Yahoo messenger evidence.

The Court found that the employer had acted reasonably and proportionately. It had warned  him that the account would be monitored and that personal messages were prohibited. It had examined the Yahoo account but not other data and documents held on his computer. Accordingly, the Court ruled that a balance had been stuck between the employer’s business interests and Mr Bogdan’s right to a private life and correspondence and there had been no violation of Article 8.

What does it change?

If you read some of the press headlines about this case, you may have thought that a new snooper’s charter had been decreed, when in fact the ruling confirms the existing law rather than developing it much further.

Should I be doing (or make sure I have done) anything as an employer?

Put in place (or review) your Company’s social media and email policy which, as highlighted in Mr Bărbulescu’s case, should contain a warning that your IT systems (including work social media accounts) are  monitored and that breach of the policy could lead to disciplinary proceedings being instigated.  Ensure your policy is communicated to employees.

You should also ensure that you have asked your employees to set up an account for the specific and legitimate business aim of communicating with clients and responding to their queries, rather than rely on their own pre-existing account.

Naturally, you will need to have the password or have some other technical way of logging into the account without the express authority of the employee each time you want to get access.

Can my boss look at my social media account?

Whether your boss can look at your social media account depends on the social media account in question.  Some accounts will be for personal purposes and to some extent private, although there is always a public element to them and you should therefore be careful with what you post publically.

Your boss has the same rights to view and use your postings to an unrestricted part of your account that anyone else possesses.  Even in more restricted areas, you may have forgotten or not known that you accepted your boss as your “friend” and they can see everything.

In any event, the law has for a long time supported employers’ use of material gathered from social media accounts as evidence of wrongdoing because they are essentially public not private spaces and Article 8 rights are not invoked.  There are countless examples of employees posting something derogatory about their boss or employer on social media and being fairly dismissed for doing so.

In this case, the Yahoo App was not in fact a social media app in the Facebook sense, but more like an email account.  Most companies use their own email systems, and where they do, they will also almost certainly have free access to your account.  Your rights to privacy in relation to company email are very limited indeed and you should not rely on the personal or private nature of the email content to protect you.

Are you experiencing any of the issues raised in this article?

For more information, please contact your usual adviser in the employment team or Joanne Kavanagh on 01737 854 573 or email [email protected] .  Further details relating to our Employment team can be found here.

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.

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