Screen time: two words that fill my three children with dread. At work, I write Blogs. At home, I am a policeman patrolling cyberspace.
It’s amazing how determined the kids are to snatch a few stolen moments on Instagram, or build precious brick-like structures in the mysteriously compelling world of Minecraft. If I’ve been moved to confiscate their iPods, I’ll soon catch them sneaking into a corner with my smartphone. If my laptop is not well hidden, they’ll be on YouTube as soon as my back is turned.
And then my eldest son started High School. Travelling alone on public transport, he needed his own phone. A ‘bring-your-own-device’ (BYOD) policy delivered him a laptop. After a fraught month bearing witness to his ever-growing obsession with the online, I spent lunchtime today asking our phone provider to block his access to mobile data.
Children, however, are not the only ones consumed with the beguiling charms of the internet. According to Nielsen’s 16th annual Australian Connected Consumers Report, 82% of Australians spend an average of 23.3 hours online each week – that’s an entire day. Disturbingly, 74% of us watch TV and use the internet on a second device at the same time.
But how is this behaviour translating to the workplace? Mobile devices and social media have made enormous changes to the way we work, but to what extent are they distracting us from our work?
The latest Sensis Social Media Report (May 2015) provides many interesting insights into when, where and how we use social media in Australia – e.g. 14% of us access social media while on the toilet. According to Sensis, 32% of us report visiting social media sites while we’re at work.
Arguments abound for both the positive and negative impacts of ubiquitous web access for employees. As far back as 2005, an American study suggested that so-called ‘cyberslacking’ was costing $178 billion in lost productivity each year; 30-65% of internet use in the workplace was found to be for purposes unrelated to the job.
But in a December 2014 survey, only 7% of “working online adults” indicated that they felt their productivity had dropped because of internet access, while 46% felt “more productive”.
With this in mind, to what extent should employers be joining me in my duties as a policeman of the worldwide web? According to a recent ruling by the European Court of Human Rights (ECHR), they are perfectly entitled to do so.
A Romanian engineer, who had been asked by his employer to create a Yahoo instant messenger account to answer clients’ queries, was subsequently fired for using the account to chat with his fiancé and brother. In telling him his services were no longer required, the company presented the employee with a lengthy transcript of his messages, which they had been monitoring over several days.
Protesting his right to privacy, the employee found no joy with his domestic courts, so he took the case to the ECHR – the highest human rights court in Europe. It ruled, however, that “the applicant’s employer’s internal regulations strictly prohibited employees from using the company’s computers and resources for personal purposes”, and that “it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours”.
Two key factors appear to have weighed heavily on the decision: the employee had received prior warning that he was not permitted to use company resources for personal purposes – and he had told his employer that the account contained only client-related communications.
While the ruling will hold weight in almost every European state, it has no legal implications here in Australia. But as Australia’s then Human Rights Commissioner, Tim Wilson, told The Sydney Morning Herald when the ECHR decision was handed down in January:
“If email accounts or phones are established for work purposes, or are accessed through work systems, they can be supervised by employers. If communications are strictly personal then monitoring by employers would be a violation of an individual’s right to privacy.”
One intriguing Australian case offers some insights into the issue. A Department of Defence employee was dismissed for allegedly excessive personal internet use – which he had actively attempted to conceal through the use of an anonymous search engine or ‘anonymiser’, and by deleting system ‘cookies’ at the end of each day.
In ultimately finding in favour of the employee, Fair Work Commission Senior Deputy President Hamberger was most strongly influenced by what he perceived to be the employer’s “amateurish and unfair” handling of “an extraordinarily drawn out affair”:
“I accept that (the employer) had some reason to be concerned about the way the applicant was using the internet,” he said. “What I fail to understand however is why the issue was not brought to the attention of the applicant’s immediate manager to enable a sensible discussion with the applicant to take place. Instead a bureaucratic process was put in train that appeared to take on a life of its own.”
The decision indicated that the Department had failed to gather evidence sufficient to warrant anything beyond “informal counselling”, and it was critical of “vague and contradictory” policies that did not spell out what might equate to “a sackable offence”.
As such, the key message for employers concerned about personal internet use is to implement a clear policy outlining expectations and potential consequences. And if allegations of misuse are serious enough to warrant action, you should ensure you are in possession of appropriate verifying evidence.
If the collection of that evidence requires the monitoring of your employees’ online activity, it would be wise to familiarise yourself with the various state-based workplace surveillance laws.
In the meantime, I would suggest that the confiscation of employees’ iPods, or severing their access to mobile data, is likely to be counterproductive. It will result in surly behaviour and failure to tidy bedrooms.
Those seeking further information or advice on this issue should in fact contact Ai Group Workplace Lawyers.
Do you believe excessive personal internet use is an issue in your workplace? Does access to the web increase or decrease productivity? Have your say and share your ideas below.
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