Can a recruitment company monitor its recruiters’ personal messages at work?

Posted on: February 16th, 2016

As you will have no doubt seen in the news, the European Court of Human Rights (ECHR) has recently considered whether employers may monitor employees’ personal messages at work. Fortunately, the case is helpful for employers.

The Romanian employee involved, Mr Barbulescu, was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancée and brother, including messages about his health and sex life. His employer became concerned that he was using work time for personal matters, in breach of his contract of employment, and decided to monitor his computer use for a week. The employer discovered the messages and Mr Barbulescu was subsequently dismissed. The Romanian courts found that the dismissal was fair.

Mr Barbulescu argued that the courts should have excluded all evidence of his personal communications on the grounds that it infringed his human right to privacy. The ECHR disagreed.

The ECHR determined that it was not unreasonable for an employer to want to verify that employees are actually working during working hours, even where it is not alleged that the employee’s actions have caused any damage. The court also considered the fact that Mr Barbulescu’s contract stated that personal internet use was strictly forbidden and that the employer had informed him that his computer use would be monitored.

It is important to remember that there have been a lot of misleading reports on this case and the ECHR made it clear that it was not giving employers the green light to snoop on all employees’ private messages. For example, the decision does not permit employers to check employees’ WhatsApp messages or to access private email accounts that are never used at work.

This case obviously impacts upon all employers whose employees use a computer to carry out their duties. It will be particularly important for recruitment companies, as the use of social media and professional networking sites by recruiters is crucial for their work.

The Yahoo messenger account considered in the Barbulescu case was a business account, which was set up to answer clients’ queries. Similarly, recruiters typically use LinkedIn as a tool for finding candidates, often via accounts set up for and paid by the recruitment company. Monitoring a recruiter’s computer use can determine whether the hours spent on professional networking sites and trawling the internet are actually used to find potential candidates and clients, or whether they are simply updating their own LinkedIn profile or messaging friends, for example.

Nevertheless, employers should not forget that there must be a reasonable purpose behind the monitoring. If a recruiter is continually missing commission targets or failing to find candidates, there is a clear business reason for determining whether inappropriate computer use is impacting upon their work. Monitoring should not be used as a fishing exercise to find the errors of a successful or productive employee.

Any monitoring activity must also be proportionate and limited to what is strictly necessary. For example, if a recruiter’s LinkedIn account is accessed to establish whether the recruiter has been messaging friends throughout the working day, the employer has no need to read every message once any incriminating messages have been found.

Key steps for employers

  • So what should a recruitment company consider before monitoring its recruiters’ personal messages at work?
  • There should be clear rules in place for using computer systems, setting out to what extent personal use is or is not permitted. This could be in the employment contract or a separate policy.
  • You should ensure that internal policies allow you to monitor employees’ use of computer systems. This should also apply to business mobile phones, if they are provided.
  • If you do not provide business mobile phones, you should either:
    • Prohibit work activity on personal mobile phones, such as syncing with their work email account; or
    • Ensure that your policy permits you to monitor personal mobile phones if they are being used for work.
  • Determine the purpose of any monitoring before it is carried out. Ultimately, monitoring should be about establishing whether employees are fulfilling their duties, not simply because you fancy a nose!
  • Any monitoring must be limited to what is strictly necessary – you do not need to read every personal email once you have discovered that the employee is in breach.

If in doubt, seek legal advice before accessing an employee’s personal messages.

If you wish to discuss the impact of this case on your recruitment company, please contact the Employment Team on 023 9236 6049.