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04 Oct Privacy in the workplace – balancing the need to know and the employee’s right to privacy

vesna_profilna Vesna Stankovič, Data Protection Officer at Agilcon

– A story how a Romanian engineer became a privacy-at-workplace trend-setter –

Once there was a Romanian engineer Mr. Barbulescu who had a pretty fiancée.
The gentleman also had a job in Romania.
He was requested by his employer to set up a Yahoo messenger account to contact his employer’s clients.

Chapter 1

When it comes to the way we communicate, modern technology has had an impressive influence on communication in the 21st century and daily life in general. Instead of discussing private matters personally behind closed doors we tend to use (also) office messaging technology to communicate with others. Don’t forget that we are actually married to our workplace and our employer!

In the same way, as Mr. Barbulescu used office messaging technology to communicate with his fiancée. He knew that the company he worked for had a rule that banned private use of any business online account. But notwithstanding such a ban he still discussed various topics online, including the topic of his health. But not just about any pain, such as general pain in the knee: he discussed his sexual health! His employer established through the spyware software that Mr. Barbulescu was using the company’s service to exchange private and personal messages. Evidently, the Romanian engineer was fired on the grounds of a breach of the employer’s rules prohibiting the use of the employer’s resources for personal purposes.

 

Chapter 2

The European Court of Human Rights is the highest court in the matters of human rights in Europe. Don’t forget that the right to privacy is a fundamental human right! Everyone has the right for his private and family life, his home, and his correspondence to be respected.

Stubborn as he was he appealed to the Romanian courts where he lost the case. Having exhausted the avenues of redress in his home country of Romania, Mr. Barbulescu took a case to the European Court of Human Rights, arguing that the termination of his employment was based on a breach of his privacy rights and that, by not revoking that measure, the Romanian courts had failed to protect such rights.

 

Chapter 3

After some dramatic legal twists and two decisions that contradicted each other and, where for some time it seemed that legal interpretation was in favor of giving a carte blanche to employers to monitor the private messages of employees, the final ruling was born. In its ruling, the Grand Chamber of the Court found that the employer’s monitoring of Mr. Barbulescu’s personal messages had construed a breach of his right to a private life. The court said: “An employer cannot reduce private social life in the workplace to zero. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted in so far as necessary”.

 

Chapter 4

Thus, the implementation of any video surveillance systems, electronic correspondence monitoring systems, even in terms of flow and not necessarily in terms of content, as well as the installation of any vehicle tracking devices, but especially the implementation of an automatic means of monitoring employees’ professional performance, should be carefully reviewed.

The Court offered very precise instructions with regard to the monitoring of employees:

  • Informing employees in advance on a potential monitoring – ideally, the internal regulation should contain from the very beginning a description of the possible scenarios in which a monitoring would be considered;
  • Absolute restriction on the use of electronic communication means for personal purposes cannot totally limit the employee’s right to privacy. This right does not cease to exist, irrespective of the restrictions imposed by the employer;
  • The existence of a very clear and strict internal policy with respect to the monitoring of employees, especially by electronic means that may not be easily detected by the employee;
  • Preparing a thorough analysis of the less intrusive alternatives taken into consideration in achieving the purpose so as to avoid to the extent possible using monitoring means;
  • Limiting the monitoring in time and space and limiting the access of employers to concrete information related to aspects such as the content of accessed web addresses, the content of communications, the location in space outside working hours;
  • Limiting the access to the information that results from the surveillance and its destruction as soon as it is no longer necessary for the purpose envisaged;
  • Giving the employee the possibility to opt for disconnection, in certain situations, from the means of monitoring (especially in the case of monitoring of vehicles).

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Lesson learned

Although the legal case of Mr. Barbulescu hasn’t dramatically changed the legal situation in Slovenia, it is certainly a timely reminder that individuals have a right to privacy in the workplace. As the boundaries of work and private life become even vaguer, particularly with the rise of the so-called gig economy, the judgment offers some important protections to employees’ right to privacy.

In Slovenia, many employers often avoid necessary considerations of privacy in the workplace due to the allowed processing of employee’s personal data directly on the basis of a law. Hence, the privacy rights of employees are not given the same weight as personal data of customers/users or potential customers/users. While we worry if we can send out an email to a potential customer we tend to worry less with respect to the use of a photo of an employee for the company’s Christmas greeting card or for the home page of the employer’s web page.

Modern HR management practices which are to encourage better performance and talent management constantly penetrate the boundaries between our business and private lives. The more sophisticated information about employees is collected, the higher is the vulnerability of an employee. Hence, it is a must to have a well-thought employee privacy regime in place and it is a must that HR professionals and all working in HR space embody the privacy fundamentals in their day-to-day work and strongly represent them in any strategic discussions about people.

 

Privacy at Agilcon and our products, such as Gecko HRM, is our core value. Respect increases trust and trust increases better results.

… Mr. Barbulescu and his pretty fiancée lived happily ever after.  



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