Monitoring Employee Communications – Where Do You Stand?

Posted by David Cammack on 2nd August 2016

Getting a good balance between accountability, trust and responsibility when it comes to employee communications can leave you treading a fine line with the law. Protecting business interests in an age where the lines between private and work life are becoming increasingly intertwined – most notably through technology – is a tall order.

Many small business owners have, according to the media, recently come to believe that employers now have carte blanche from the European Court of Human Rights to monitor employee communications. However, this isn’t quite true. So what is the situation really?

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Why Monitoring Employee Communications Matters

When you’re a business owner, particularly of a small to medium-sized business, one employee stepping out of line through the misuse of technology like social media can have an enormous impact. Repercussions extend across a range of concerns from reputational harm to legal implications, as well as damage to the bottom line.

In an age where 74% of all Internet users are active on social media, and 71% of those are accessing it on their mobile device, we can’t escape its tendrils, nor would we want to: after all for many of us it’s become our profitable lifeblood. However, the nature of this Internet access means people often respond instantly. There is no cooling-off period – it’s straight to social media, with an expectation of a response within an hour. If no response is forthcoming to a complaint, then 6 out of 10 people will go on to name and shame the company publicly. (See the Legalo Infographic “How social media is affecting customer service” for more details on public reactions.)

This means employers simply cannot afford to ignore the impact of social media on the business: it requires a two-pronged approach. Employers should know what they can and can’t do when it comes to social media use – both in relation to use of a company’s own social media channels and usage by employees of their own personal accounts.

The Law on Monitoring Employee Communications – Get Ahead of the Game

What we have in fact learned from the recent case at the European Court of Human Rights is not so much that you the employer can monitor employee communications, but more about how and when you may do so. You cannot simply set yourself up with a cup of tea and start poring over reams of personal communications sent on company devices. Employees do have rights to a personal and private life. In fact, in the UK it is far more common for employers to allow the use of social media and other technology by their employees during work hours and on work devices than in many other countries.

What matters is having an absolutely clear understanding about what you’re happy with as an employer when it comes to social media and other communications by your employees, and what you’re not. You need to have a clear understanding of what is detrimental to your business goals and reputation. You may indeed monitor their communications as long as there is just cause, e.g. to check there are no negative consequences for the business or that the employees are carrying out their duties properly, but not simply for the sake of it.

How to Monitor Employee Communications Legally

In a nutshell you can stay within the Data Protection Act 1998, the Employment Rights Act 1996 and the recent ECHR decision, by ensuring:

  • Any adverse impact on an employee of monitoring their communications is justified by the benefits to the employer, or others.
  • The type and extent of monitoring is proportional to the risk.
  • You communicate with your employees about the type of monitoring that will take place, explaining how and why.
  • The monitoring only relates to legitimate reasons, rather than a free-for-all.

The simplest way of doing the above – ensuring you have all the legal bases covered whilst also protecting your business interests – is to have water-tight policies covering employee communications and monitoring, especially in areas like social media use.

Businesses need to have HR policies that leave no room for confusion. Rather, they need to spell out the rights and responsibilities of both the employee and the employer. A good policy will detail how, why and when monitoring is undertaken by the employer. It will explain how employees may use both IT equipment and accounts such as the employer’s and the individual’s social media for both work and personal reasons. In the event that employees use private devices for work purposes (e.g. personal laptops, mobile phones, etc) it also needs to determine the scope of these.

Legalo are legal policy experts. We understand employers’ responsibilities as well as the need to protect their bottom line. We do the homework so that you don’t have to, but can get on with the important job of running your business, knowing that legal issues are taken care of. We have developed a Social Media Policy Template that employers can download, easily personalise in minutes, and distribute to employees, ensuring you are always on the right side of the law.

So take action and download the Legalo Social Media Policy Template today and get your business covered.