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Is It Legal To Monitor Employee Communications?

It is increasingly necessary, but what does the law think?

17Sep

Often when we discuss digital strategies, we are referring to how we use digital to communicate with our customers and potential customers. The reality is that most of the time that we communicate through these means it is done with internal team members.

Where this has historically been done through email, we are also seeing the proliferation of instant messaging services being used. Services like Skype, Slack and Yammer are becoming popular due to their speed, after all it is quicker to send an instant message and get a reply, rather than placing an email into an already busy inbox of a co-worker.

With these increasing uses of digital communication in the workplace comes the increased capabilities of employers to monitor the communications of their employees. In fact this is not a new phenomena, with a 1996 study by the Society for Human Resource Management showing that 36% of companies questioned read employee messages regularly and 70% said employers should reserve the right to do so.

The legalities of these have always been a grey area, although the majority of cases have fallen on the side of the employer. However, this may be due to the content of emails found rather than the actual monitoring itself. It is often argued that as an employee is using company equipment and software, that they shouldn’t assume to have privacy over what is written.

In our post-recession world there is a clear benefit to this kind of monitoring in industries that have strict compliance rules, such as insurance companies, financial institutions and those involved in public services. Following cases such as the libor rigging scandal, it is important for these companies to be able to monitor the actions of employees that may have a wider detrimental effect on society.

These companies are not the only ones using this software though and we are increasingly seeing companies adopting a strategy of reading employee communications for a number of legitimate reasons. This could be anything from text analysis to find out employee gripes, through to suspected foul play amongst certain teams.

Although in many of the top instant messaging services and in most email providers there is the option to read employee communications, the bigger question is whether a company should do it.

A recent survey by GetApp found that 38.7% of companies thought that it was an invasion of privacy, 43.3% believed that it should only be done when necessary and 18% believe that they should be constantly monitored to protect the company.

The legal implications of monitoring internal communications differ between jurisdictions, for instance in Germany it is illegal to access personal messages sent between employees and as differentiating between personal communications and work communications is often impossible until it is being read, it is not generally done.

In fact, in the UK the justifications for monitoring employee communications without consent is ambiguous:

"An employee does not need to provide consent to monitoring (including monitoring of the use of social media on work systems) provided that:

- An impact assessment has been undertaken.

- Monitoring is for legitimate purposes.

- The monitoring does not involve processing sensitive personal data."

To try and clear this up, the European Information Commissioner has created a checklist to avoid potential legal consequences:

  • Employees should be fully informed as to what monitoring takes place and why (covert monitoring may only be justified where there are grounds for suspecting criminal activity);
  • Staff with access to information obtained through monitoring should be limited and given appropriate training on data protection and security;
  • Monitoring should be limited, targeted and time-bound;
  • Employers should consult with employees and their unions (if any);
  • Monitoring of the content of e-mails should be proportionate to the purpose to be achieved; and
  • E-mails that are clearly personal should not be opened.

That there were grounds for these to be published is demonstrative of the potential legal quagmire that companies can find themselves in regarding this practice, but perhaps simple legal implications are not what should hold companies back.

The key to a productive workforce is trust and a strong relationship between employee and employer. Through monitoring communications, the company is expressing doubts over how much it trusts its employees which can significantly impact the relationship between employer and employee.

Sometimes a company needs to monitor this communication, often for legal or welfare issues, but when this is done, the most important element is for them to be upfront with their employees. Telling them that this is happening and the justifications for the decision are vital to maintaining the relationship. If you are planning on implementing this, the first port of call should be here, if not, you could do irreversible damage to the employee/employer relationship.

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