Use of Employee E-mails in Dismissal Cases: Look Before You Leap!

Despite the emergence of new communication platforms, email remains the preferred means of communication within most companies. In this regard, employees generally receive an email address from their employer, which they may also be able to use for personal or private ends. Of course, this will have certain consequences for the employer.

First, it may often be useful, or necessary, for the employer, in order to ensure the continuity of its business, to be able to access the inboxes of its employees or even read their emails.  It may also be considered legitimate to exercise a certain level of control over the use made by employees of their professional email accounts. Indeed, email may be used to spread malware or to commit various crimes (e.g. disparagement or defamation).

It should be noted that many companies have Internet and email policies which they take care to enforce and that email messages may constitute an important means of proof in the event of misconduct by an employee. Indeed, employee emails are frequently produced in the context of dismissal proceedings.

However, while many situations would appear to justify employer access to employee inboxes (and sometimes the content of the emails contained therein), the question arises as to whether such access is unrestricted. The answer, as you may suspect, is no.

Electronic communications are protected by numerous pieces of legislation containing both targeted and more generally applicable provisions.

The first category refers to legislation specifically designed to protect electronic communications, such as CBA No 81 on the protection of employee privacy with regard to the monitoring of electronic communications over a network, Article 314bis of the Criminal Code which prohibits in particular the monitoring of unread emails without the consent of all parties concerned, and finally Article 124 of the Electronic Communications Act which also prohibits the intentional monitoring of information transmitted by electronic means without the authorisation of the persons directly, and even indirectly, concerned.

The second category includes the Privacy Act, which contains a series of rules on the processing of personal data, and Article 8 of the European Convention on Human Rights, as well as Article 22 of the Constitution, both of which protect the right to privacy.

These provisions suggest that it is often difficult for an employer to use the emails of an employee as proof against him or her.

The Brussels Labour Court confirmed as much in a decision of 9 September 2016.

In the case in question, the employer had accessed the inbox of one of its employees, read the messages contained therein and found information to justify dismissing the employee for serious cause.  To justify the dismissal, the employer produced the incriminating emails.

The court held that since the emails in question were personal, the employer had violated the employee's right to privacy. Indeed, according to the court, an employee may reasonably expect his or her employer not to read his or her personal emails. Consequently, the Court found that the employer, which had not obtained the necessary authorisations to read the emails, had violated Article 124 of the Electronic Communications Act and, on this basis, rejected the reasons cited as serious cause.

It should be noted that Article 24 of the Electronic Communications Act does not distinguish between personal and professional emails, which implies that the court's reasoning can be extended to non-personal employee communications.

While not revolutionary, this decision is nonetheless a useful wake-up call which should render employers more cautious when considering producing employee emails as evidence in legal proceedings.