The European Court of Human Rights (ECHR) recently ruled that an employer was within its rights to read the Yahoo Messenger chats of one of its employees, as the employee had broken company rules.

It’s been legal for quite some time now for employers to read their employees communications – within reason. UK law says that checks on employee communications must be ‘proportional.’

From an employee’s perspective, it can only be seen as a lack of trust in them: the employer doesn’t think their staff are adult enough to manage their time, so they forbid them from engaging in personal communications during work-time.

Clearly, this is a one-way ticket to actively disengaging your staff.

But let’s take a step back and think about the point of having such legislation in the first place. The reason for this legislation may not be what you think it is.

What is that reason? Do you remember learning about Jeremy Bentham’s panopticon from your school days?

The panopticon was originally designed by Bentham in the late 18th century, and it was a way of embedding surveillance into the very architecture of institutions, normally prisons but also schools, military buildings – you name it. It was a round building with a central tower, which had small windows.

A guard would sit in that central tower, from where he could see around him 360 degrees. The prisoners, on the other hand, whilst they could see the central tower, could never know if the guard happened to be looking at them.

The result? They acted as if they were being watched all the time. It was barely even necessary to have a guard there, because they had internalised their own surveillance.

The knowledge that your employer can read your communications is a panopticon. It’s not a physical structure, yet through our awareness of it, we all monitor our own behaviour at work. We have internalised our own surveillance, decreasing the need for the employer to actually do anything about it.

In other words, it is not highly likely that your employer will be devoting a huge amount of time (if any) to reading your communications. They have other things to do – like run the business.

However, there is a reason why surveillance will always be flawed. “But if you’re not doing anything wrong,” I hear you ask, “then what’s the big deal?”

This was a discussion I often had with my students, when I used to teach. My answer was always the same. “Who is doing the watching? Is it a fair, objective arbiter? Or a biased person who might have their own reason for doing things?” Nobody can guarantee that surveillance will be 100% objective 100% of the time, for the simple reason that it’s interpreted by people. This, of course, is why the courts are called in.

The answer here is to square the horns of the dilemma and reconcile a problematic policy with the fact that it’s not going to go away any time soon.

So, as a matter of best practice, if you are an employer and it is your policy that you have the right to access your employees’ communications, it’s a good idea to make sure that you communicate this to employees in no uncertain terms, and that they explicitly agree to it.

If you are an employee working for a company that includes this in their company policy, what can you do?

• Find the policy and read it. What does it really mean for you? You can ask about the detail – does this pertain only to company-owned devices? Or is it also true for your own personal devices?
• If you have concerns about this, communicate them articulately to management.
• If you have ideas about how to improve the policy (or communication about it), suggest them to management.
• Understand that this isn’t personal. It’s Europe-wide, it’s not aimed at you.
• If you do decide to knowingly break company rules, realise that trust is a two-way street.
• Don’t break company rules; that’s not the way to resist a surveillance state.

If you’ve read some of my articles before, you know I try to keep things in the real world – while we may all wish for something more ideal, reality is a grey area that we have to navigate.

As always, the goal here for employees is to try to understand company policy and procedures, and then communicate to management any fears and concerns they may have, as well as any suggestions they have that might contribute to strategy, making the company a better place to work.