An employer's right to pry and the war on talent

Talent retention will be top of the agenda for many firms this year. The recession of the late noughties is continuing to impact on the make-up of private practice firms, leaving a talent gap at associate and senior associate level, especially in commercial sectors.

The rising demand for experienced, mid-level lawyers means that employers may need to dig a little deeper into their profits to guarantee the loyalty of their home-grown solicitors in a market where top talent is an increasingly valuable commodity.

Of course, it isn't all about cold hard cash. Nurturing a solicitor from trainee to partner requires more than regular salary rises - although they are not to be sniffed at after a few years of stalling. A comprehensive benefits package, flexible working opportunities, glitzy office space, and a clear path to partnership are at the forefront of the minds of young professionals. Each of these can be offered and perhaps delivered, but even that might not be enough.

The temptation to leave behind chargeable hours and move in-house is ever more present. Businesses are recognising the costs savings they can make by investing in legal talent rather than engaging third-party firms, who can be distracted by other demands on their time. This trend seems set to continue, which means that the private practice solicitor is in even greater demand among successful firms.

If firms are looking at ways of retaining the well-trained, experienced lawyers they have, the starting point should be trust. This has recently been considered in a European case that has had many of us talking.

In Barbulescu v Romania, the European Court of Human Rights (ECtHR) considered an employee's right to respect for their private life. The Strasbourg court found that by accessing personal communications between the employee, his fiancée, and brother via an online messenger service - originally set up to respond to client queries - the employer had not breached his right to privacy. Taking into account the employer's policy prohibiting the use of its computers for personal purposes, the employer was found to have acted legitimately in monitoring the messenger account in the belief that it contained work-related messages.

The case has been met with mixed reactions by the mainstream press and employers. Scratch the surface, though, and the ruling makes clear that unfettered snooping should not be tolerated, and the dissenting judgment makes a good case for greater protection of employees' privacy in an increasingly digital world.

As with most cases, the facts are key and spin is inevitable, especially as we gear up for an EU referendum and a British Bill of Rights.

The ECtHR found that it was not unreasonable for an employer to want to verify that its employees were completing their professional tasks during working hours. It is of note that the court had particular regard to the need to strike a balance between the employee's right to respect for his private life and his employer's interests.

What does this have to do with retaining employees? Well, it's all about trust. Have confidence in your employees to behave properly and appropriately and you will retain their loyalty. It might not always work, but it's fundamental to every relationship.

Kevin Poulter is SJ's editor at large and a legal director at Bircham Dyson Bell @kevinpoulter