Your business is up and running. After years of slogging away, it’s finally growing. In fact, it’s now so big you need some employees.

“Just do it all yourself!” a mate says. “We just had to sack our manager – realised she was sending commercial information to her boyfriend: happens to work for a competitor. And the worst of it? She’s now threatening to sue us for breach of her privacy rights!”

First of all, remain calm. You do need employees if your business is doing well, and your mate’s former manager is unlikely to have a good case, as the following cases show:

  • A 2014 case, Atkinson v Gateway, had very similar facts to this, and the employee did not succeed.
  • The UK’s approach was clarified in April by the Employment Appeal Tribunal in the case of Garamukanwa v Solent NHS Trust. Mr Garamukanwa’s behaviour was truly awful, involving a campaign of online harassment of another colleague, with whom he had been in a relationship, and her new partner. In its investigation, the trust relied in information supplied by the police which, in normal circumstances, would certainly have been private. However, due to the malicious nature of his actions he could not have had any expectation of privacy.
  • Just this January there was a case on the matter in the European Court of Human Rights (ECHR): Barbulescu v Romania. The employee had been asked to set up a Yahoo messenger account for work purposes. The employer’s policies expressly forbade personal use of the internet and he was told that the account would be monitored. Records showed that he used the account to liaise with his wife and his brother, so he was dismissed. The Romanian court considered that dismissal fair, and the ECHR did not consider it a breach of privacy rights – given the employer’s policies and instructions, Barbulescu had no expectation of privacy.

It’s not the end of the matter. For a start, Barbulescu is now on its way to the Grand Chamber of the ECHR, so we may receive further clarification. There have been cases that have gone the other way – excessive, unnecessary monitoring of which the employee has not been warned may well be a breach of privacy rights.

The most important thing, as with most areas of employment is to create a clear policy setting out what you expect from your employees. The linked government services webpage says exactly that. From my experience, it is rare to impose an absolute ban on use of the internet for personal purposes. It is not normally necessary, and given the amount of time people spend at work it may be bad for morale. Employees should, however, be told that excessive internet use may be a disciplinary matter. Policies should also cover related areas like data security.

As these cases show, it is not always simple. Given the ever-changing online world we now inhabit, you will constantly be faced with new challenges and will have difficult decisions to make. But you will be in a better position if you have a clear and fair policy than if you do not.

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