Private browsing at the workplace can be done without any problems usually. But what exactly is allowed? What are the risks of dismissal? In Malaysia, this issue is in a bit of a grey area, so we take a look at how Germany tackles it
Quickly checking the Facebook feed before the next meeting, buying something at an auction on eBay, checking your account balance or sending your sweetheart a quick greeting from your company e-mail address: All of these things can be done without any problems at most companies, since they offer internet access at the workplace. However, private browsing at the office is a thorn in the eye for many bosses, and many employees have already lost their jobs because of it. Consequently, you should know all about your rights and responsibilities, so that you won’t get a pink slip bearing the following text: ‘Reason for dismissal: The internet’.
What’s In Your Employment Contract?
When it comes to the private usage of the internet at the workplace, the situation primarily revolves around the company’s internal regulations. In order to make sure you don’t receive any unpleasant surprises, you should take a look at the employment contract, the company agreement or the corporate policy: These documents will usually specify whether private chatting, surfing or e-mailing is allowed or prohibited. The situation often involves mixed regulations such as private online activities could only be allowed during breaks.
However, you have to comply with clearlyexpressed prohibitions. Nevertheless, the boss usually isn’t allowed to terminate anyone without notice if the rules are violated. According to the so-called ‘prognosis principle’, he must first issue a warning. From the lawyers’ point of view, a behaviour-based dismissal is not a punishment for prior misbehaviour, but an action taken by the boss to forestall future violations. Consequently, before an employee can be dismissed, he must be warned so that he has the opportunity to change his behaviour.
The situation becomes somewhat complicated if there is neither a clear prohibition nor an explicit permission. In such a case, it would he helpful to see what your colleagues are doing. If your colleagues use the internet to send and receive private mails or use Facebook, and if your boss tolerates this behaviour over a certain period of time, the scenario would involve what lawyers call a ‘company practice’. This is what it means: If the boss notices that his subordinates are using the internet for private surfing and does not do anything about it for a period of six months to one year, then such activities are officially allowed. The boss must know for a fact that the employees are using the internet for private activities – Consequently, if you get caught while surfing the internet secretly, the deck will be stacked against you. To be on the safe side, if approval has not been granted, you should simply assume that private usage of the internet is prohibited.
The Most Important Verdicts
As is often the case when it comes to legal disputes, the issue of whether somebody is actually going to lose his job because he spent too much time on Facebook depends on the particular situation in question. A specific offence – such as watching pornographic content during working hours – does not necessarily have to result in a dismissal. Furthermore, the situation depends upon the extent to which an employee uses the internet for private purposes. As an example, this is what the German Federal Labour Court specified in July 2005: ‘‘The private utilisation of the internet may not significantly impede the discharging of the obligations associated with the employment contract.” The most important rulings demonstrate what counts as a ‘significant’ violation of one’s duties.
Dismissal on account of pornographic consumption
Those who watch pornography at the workplace probably shouldn’t be surprised if they are terminated without notice. However, there have been cases where Federal Labour Court issued two very different rulings in two similar cases.
The first case (which took place in the year 2004) involved an employee of the Federal Office of Defence Technology and Procurement. For two months in a row, the man in question used the internet for private surfing for a total of about 50 hours, even though such activities were prohibited. In some cases, he surfed the internet for up to three hours every day, and he primarily visited pornographic websites. The judges believed that this constituted a very significant violation of his employment obligations. Furthermore, his behaviour sullied the reputation of an office of the Ministry of Defence.
However, the Federal Labour Court took a very different view in the case of the department head who was working for a building association. He was dismissed without notice because he spent several hours on the internet and even downloaded pornographic images, even though private usage of the internet was strictly prohibited. In this case, the federal judges concluded that the downloading of pornographic images did not by itself constitute a sufficient reason for termination. They were of the opinion that since the department manager only viewed the pornographic material during breaks, the employers did not suffer any damage because of it. According to the ruling, a warning would have sufficed, because it could have been assumed that the man would then have changed his behaviour.
More than 150 e-mails is too much
According to the state labour court of Lower Saxony, those who write private e-mails at the workplace in an unrestrained manner must expect to be dismissed without notice. The case in question involved an employee working for a construction office, who used his business PC to simultaneously correspond with ten different people. In some cases, more than 150 private e-mails were generated per day. This led to a situation in which the man in question did not have enough time to do his work. Consequently, the judges concluded that the man’s employment obligation had been violated to such an extent that a warning was not necessary. The judges did not accept the employee’s argument that the corporation violated his personal rights by showing the court his private e-mails.
The European Court of Human Rights recently confirmed that employers may monitor their employees’ communications, in order to check whether the employees are fulfilling their obligations. An employer who finds private messages while monitoring a purely businessoriented messenger account will not be violating the employee’s personal rights, and may dismiss the employee in question.
Checking the account balance is not surfing
According to a ruling issued by the state labour court of Rhineland-Palatinate, those who use the internet to check their account balance during working hours need not expect a termination letter. According to the judges, a procedure such as checking one’s account balance that takes just 20 seconds cannot be described as ‘surfing the internet’. Although the employee in question had signed a declaration that threatened labour-law-related consequences for private internet surfing, a termination would have necessitated additional acts, such as a prohibited download operations, the inflicting of additional costs or a violation of the employment obligation.
Using A Smartphone At The Workplace
You can surf the internet at the workplace without even using a PC – All you need is a smartphone. However, according to attorneyat- law Robert C. Mudter, the same rules apply to both the smartphone and the business computer: ‘‘Employers pay their employees so that the employees will put their working power at the employers’ disposal. The term ‘working power’ rarely covers private telephone conversations, chats or the like.”
Consequently, those who use their private mobile phones to constantly send WhatsApp messages must expect to receive a warning if their performance suffers because of it. However, according to Mr Mudter, when it comes to WhatsApp, the issue surrounding the key phrase of ‘social adequacy’ has not yet been considered by the courts: ‘‘Is it normal to send brief WhatsApp messages every now and then, just like it’s normal to briefly discuss this and that at the office? The judicature has not yet said anything about this.”
However, private mobile phones cannot be banned from the workplace altogether: ‘‘For example, parents need to be reachable if their children get hurt at school”, explains Mr Mudter. Brief messages or telephone conversations are allowed if they are work-related. For example, if you call home to let your family know that you’re going to have to work overtime, the call will not be considered to be a private telephone call.
Private apps on the official mobile phone
However, the situation looks quite different when it comes to official mobile phones: In such a case, the employer may prohibit private use for reasons related to data protection. A private app that has been installed on an official mobile phone may access confidential documents, which in turn could inflict damage upon the company. ‘‘Before you install WhatsApp or some other app on your official mobile phone, you should consider the security risk. In case of any doubts, you should always obtain permission from your employers.”, says Mr Mudter.
However, there are very elegant technical solutions that ensure that employees can make private use of an official mobile phone without having to worry about security loopholes. One of these solutions is the BizzTrust user interface, which was developed by Fraunhofer SIT. It divides an Android smartphone into two sections – A business-related section and a private section. If an employee installs a harmful app in the private section, it cannot access the data contained in the businessrelated section. However, even this app cannot protect you from the urge to surf the internet excessively during working hours. When it comes to this particular department, each employee has to bear the responsibility himself.