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The boss is watching

Twitter and Facebook at work – what’s the right way to monitor and control it? Legal expert Anne Hughes has some pointers.

The Negotiator

big brother watching imageIn a world where everyone is glued to their smartphones and addicted to Facebook and Twitter, there are still a few people who want their personal communications to remain private. That is why there has been so much controversy recently over the Government’s proposals to introduce new laws allowing it to snoop on all electronic communications of UK citizens without a warrant. But how do people feel about their employers snooping on their personal communications?

Carrying a Blackberry 24/7 means that the line between work and private life becomes more blurred, most of us use work email for personal use. iPads are the latest ‘must have’ executive accessory and people don’t think twice about forwarding confidential company documents to their personal email accounts so that they can access them away from their desks. This helps us cram more working hours into our days, and so has an obvious upside for business. But there are downsides too. Sensitive confidential information may be lost or stolen.

As staff ‘tweet’ about their day, or post comments on Facebook about their boss’s latest antics, their right to freedom of expression and privacy comes into direct conflict with the company’s interests to protect its professional reputation. This has led to a string of employment tribunal cases recently hitting the news.

  • If you want to monitor an employee’s use of emails and internet at work, the Employment Practices Code is essential reading (www.ico.gov.uk);
  • The business should have a clear internet and electronic communications policy for staff, which lays down the ground rules and explains the consequences of failure to comply;
  • Staff should be required to be familiar with the policy and warned that a breach of it will be treated as serious misconduct, which could lead to dismissal; and
  • If employees are expected to work away from the office, they should be given a secure way of accessing the confidential information needed to get the job done.

As staff tweet, their right to privacy conflicts with the company’s interests.’

If it is discovered that an employee has forwarded confidential information to their personal email account, the company will want to make sure that the information has not been misused or leaked. Often, an employer’s first step is to carry out an investigation (including a forensic IT investigation and an interview with the employee concerned). Then, the company may ask the employee to give written undertakings to confirm that the information has not been misused or disclosed to any third parties. Some employers demand possession of the employee’s personal computers and other devices as part of the disciplinary process so that they can search for (and permanently delete) the company’s information. Understandably, most employees will regard this to be a gross intrusion into their privacy. In reality, we often store a huge amount of personal information and photographs on our personal computers, belonging to us and our families. Any proposed process for inspecting an employee’s personal devices must show respect for their privacy and property.

Here are some tips on best practice:

  • Appoint an independent IT expert, who will inspect the employee’s devices only with their consent and under their supervision;
  • The scope of the IT expert’s job should be very clearly defined and explained to the employee in advance;
  • The IT expert should enter into a separate confidentiality agreement with the employee, agreeing not to disclose to any third party information belonging to the employee; and
  • In return for the employee’s cooperation, the company may be willing to indemnify the employee in respect of any damage to their device, software or personal data (including deletion).

This generation of staff has learnt how to multi-task so that we are almost constantly online. The challenge for employers now is to help staff realise when it is appropriate to ‘switch-off’ from their work email! It seems that we are still working-out where the dividing line should be, between work and our private lives.

Anne Hughes is a Senior Associate at Fox Solicitors
ahughes@foxlawyers.com
020 7618 2400
www.foxlawyers.com

June 2, 2012

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