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Should employers snoop on office 'Facebookers'?

By Kamau Muthoni | January 14th 2016

NAIROBI: Many Kenyan workers who like to work and "Facebook" at the same time would be in a lot of trouble if what has happened in Europe happens here.

A court has ruled in favour of bosses who snoop on their employees' emails, including their private messages on social sites with loved ones, while at work.

This might arm employers with the arsenal to take disciplinary action against employees who squander crucial man-hours sending emails and chatting with friends and relatives on social media websites.

The European Court of Human Rights ruled in a case which was lodged by a Romanian man who was fired after his employer spied on his private Yahoo! Inc. chats.

The landmark decision has sent shock waves and sparked a debate on whether the same can apply locally.

Lawyers who spoke to The Standard Wednesday gave diverse views on whether the current law allows superiors to keep their juniors in check, including by monitoring their private affairs during working hours.

Lawyer Judith Guserwa, who deals mostly with labour matters, said this cannot apply in Kenya as the Constitution protects an individuals' privacy.

She said it is both illegal and criminal for bosses to check emails and online chats of their juniors in to ensure they are not misusing their working hours.

"The current law protects individuals from infringing on others' privacy. If it happened and you are eavesdropping on employees even if it's not work related, you are committing a criminal offence," Guserwa said. "It's unconstitutional, illegal and unjustifiable."

But lawyer John Mbaluto argued that the right to privacy has limitations especially at work.

The lawyer said that monitoring employees during work hours overrides the right to privacy and therefore it's not illegal.

"If you are within working hours, there is a bracket that employers can check on what you are doing and it includes going through your emails and social media. You are employed to work and not chat," said Mr Mbaluto.

A social media user Maurine Atinga reiterated the argument by the lawyer. "There is nothing you can do if you are in such a situation. In your (employment) letter there is a part you signed saying you will work with commitment for your employer," she said

"It is good that you keep off Whatsapp and Facebook during official hours," she advised.

Martin Teresa, also a social media user, said employers snooping on private affairs of their employees happens in the country often although no disputes have arisen from the practice.

Another lawyer Okweh Achiando said there is no law in Kenya backing  snooping but employers are justified to do it if employees are using company facilities.

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