April 27 2022

Constitutional Court's latest judgment on inspection of employees' correspondences

Gün + Partners | Employment & Immigration - Turkey

Kardelen Özden, Beril Yayla Sapan

Introduction
Facts
Decision
Comment


Introduction

In a judgment dated 28 December 2021,(1) the Constitutional Court discussed an employer's examination of an employee's WhatsApp messages and his dismissal from the company as a result of their content. The discussion took place in the context of the right to privacy and the freedom of communication.

In its decision, the Court ruled that the employer had violated these rights by obtaining messages from the employee's WhatsApp, which he had installed on his computer for private use and to send private messages to his friends.

Facts

The applicant worked as a data processing officer in a public hospital affiliated with the Ministry of Health, for which the private company that employed him provided services. In the case at hand, it was stated that one of the directors of the hospital saw the WhatsApp correspondences on the applicant's company computer and obtained the contents of the message. As a result, the applicant's employment contract was terminated.

According to the judgment, the employer requested the applicant's defence on the allegations that he, together with his colleagues, had slandered and insulted the company and hospital managers via WhatsApp, and that he had disrupted the information system in an organised manner with his colleagues. After submitting his defence, the employee was dismissed without notice.

In the reinstatement action that was filed by the applicant, he asserted that:

  • the employment contract had been unlawfully terminated;
  • the messaging program containing the relevant correspondences was widely used;
  • the correspondences should have been protected as personal data;
  • the way in which the conversations had been obtained was ambiguous; and
  • the correspondences were qualified as unlawful evidence.

The local court accepted the case and ruled to invalidate the termination and reinstate the applicant. However, upon the defendant's appeal, the regional appellate court entered final judgment to reverse the local court's judgment and rejected the case. The reasoning of the decision stated that the messages on which the termination was based were correspondences of a humiliating and insulting nature against the defendant and hospital managers.

Applicant's claims and ministry's opinion
In the application made to the Constitutional Court, the applicant claimed that:

  • WhatsApp was not accessible by third parties; therefore, the contents of the messages were qualified as unlawful evidence;
  • it was not against the law for employees to establish communication groups among themselves and to be in communication with each other;
  • despite the fact that the examination of the correspondences on WhatsApp constituted an unfair intervention as regards the right to privacy and freedom of communication, no such determination had been made in the reinstatement lawsuit, and that the correspondence in question had been obtained by the employer through unlawful methods; and
  • his right to privacy had been violated as the messages, which were personal data, had been used as evidence.

In the Ministry of Health's opinion:

  • the applicant had insulted the company and institution managers together with his friends through WhatsApp on his work computer;
  • the applicant had disrupted the information system in an organised manner with his colleagues; and
  • the public authorities had not directly interfered with the applicant's right to privacy.

Decision

The Constitutional Court, with reference to the previous decisions, stated that in order to resolve each dispute, it would have establish whether:

  • the parties had been informed about the restrictive and compelling regulations;
  • the legitimate aim causing the interference with the fundamental rights of the employees was proportional to the interference; and
  • the termination of the contract was a reasonable and proportionate action against the actions or inactions of the employees.

In addition, the ruling emphasised that, in principle, employers can monitor the communication tools offered to employees and also impose restrictions on the use of communication tools within the scope of administrative authority for reasons that can be regarded as justified and legitimate, such as:

  • ensuring the control of the information flow and the effective conduct of business activities;
  • protecting against criminal and legal liability due to the employee's actions; and
  • measuring efficiency or security concerns.

However, the employer's administrative authority was limited to conducting business activities and ensuring order and security in the workplace.

In the case at hand, the Court stated that:

  • WhatsApp correspondences, which constituted the basis for the termination, had been obtained by the responsible supervisor as a result of the applicant having left his computer turned on;
  • WhatsApp was irrelevant to the functioning of the workplace;
  • the applicant and his friends had created the messaging group for private messaging; and
  • the messages between the applicant and his colleagues included his private views about the workplace and the employees, some of which were disparaging.

However, the Court stated that the employer had failed to set out:

  • legitimate reasons and grounds for the interference;
  • that the applicant's expectations had been observed and their rights were recognised; and
  • that the applicant had been informed about the intervention.

Therefore, it was justifiable to allege that the contents of the messages had been accessed unlawfully without the applicant's consent or prior notification, even though the applicant had not made them public.

In addition, the Court stated in its decision that the employer could not provide a sound explanation for obtaining the private messages on the applicant's computer through a lawful method. In this context, the defendant's attorney pointed out during the proceedings that the responsible supervisor had obtained the content of the messages because the applicant had left his computer on.

The scope of the employer's intervention was also discussed in the decision, and it was concluded that termination of the employment contract by obtaining the contents of the messages violated the right to privacy and the freedom of communication.

Comment

Regarding the examination of the employee's WhatsApp messages and his dismissal as a consequence, the Constitutional Court's emphasised the proportionality of the intervention, the importance of the information requirement and the method by which the evidence relevant to the termination was obtained. In this judgment, the Court drew attention to the importance of the requirement to notify employees and provide guidance regarding the proportionality of such interventions.

For further information on this topic please contact Beril Yayla Sapan or Kardelen Özden at Gün + Partners by telephone (+90 212 354 00 00) or email ([email protected] or [email protected]). The Gün + Partners website can be accessed at www.gun.av.tr.

Endnotes

(1) 2018/34584. Published in the Official Gazette (31747), dated 11 February 2022.