On 7 February 2013, the Brussels Labour Court of Appeal rendered a judgment on the admissibility into evidence of e-mails obtained in violation of the privacy rules.

1. The facts

The case submitted to the court pertained to the termination for cause of a works council member. It should be recalled that such employee representatives benefit from heightened protection against dismissal and can only be dismissed for cause after the court has acknowledged the grounds for termination.

The employee concerned was suspected of exercising a secondary professional activity during working hours, using the e-mail account placed at his disposal by the employer.  The employer was made aware of these facts after checking the employee's e-mail.  The employer subsequently petitioned the court to obtain the latter's acknowledgement that the facts justified termination without notice or severance.

2. The issue

In his defence, the employee contested the submission of the e-mails to the court.  The employee claimed that the messages were obtained in violation of the applicable privacy rules (namely, Article 8 of the European Convention on Human Rights, Article 22 of the Belgian Constitution (guaranteeing the right to privacy), the Electronic Communications Act (guaranteeing the confidentiality of electronic communications), and Collective Bargaining Agreement No. 81 (setting out the conditions at which an employer can monitor the use of online technologies by its employees)).  The use of the e-mails was challenged on the ground that the employee never agreed in any way to the consultation of his e-mail account, and no monitoring procedure was ever put in place (which should have stipulated) the purposes of the monitoring and the applicable procedure. 

In response to these arguments, the employer cited Supreme Court (Cour de cassation) case law, according to which evidence obtained illegally must only be rejected by the courts if:

  • the admission of such evidence would jeopardize the defendant's right to a fair trial; or
  • a specific statutory provision provides that such evidence shall be considered null and void; or
  • the evidence so obtained is not or is no longer reliable.

According to the employer, none of these grounds were applicable in this case, meaning the emails could be used in court as evidence.

The abovementioned Supreme Court case law was initially rendered in criminal cases.  It was however extended by the Supreme Court to civil proceedings (which include proceedings before the labour courts) by a 2008 judgment, which concerned a sanction imposed by the unemployment authorities on an unemployed person (suspension of unemployment benefits). 

3. The decision

Despite the specificities of the 2008 Supreme Court decision, several labour courts relied on this decision to justify the acceptance, in civil labour disputes, of evidence obtained unlawfully.

In its decision of 7 February 2013, the Brussels Labour Court of Appeal rejected this position and, consequently, the e-mails produced by the employer, on the ground that the precedent for doing so had initially been rendered by the Supreme Court in criminal proceedings.  According to the appellate court, the 2008 Supreme Court decision (extending this precedent to a civil matter) should be viewed as a factually specific, one-off decision which cannot be extended to all civil matters.  Indeed, the 2008 Supreme Court decision, although rendered in civil proceedings, pertained to the imposition of a quasi-criminal sanction.

4. Lessons to be learned

The monitoring of employee emails remains a sensitive subject.  Further to the 2008 Supreme Court decision, many scholars were of the opinion that e-mails obtained unlawfully could, in most cases, be used as evidence in the context of employment disputes.

The Brussels Labour Court of Appeal found otherwise, however.  It emphasises the need for adequate and transparent monitoring procedures, of which the employees have been made aware, and compliance with the applicable privacy rules.  Otherwise, a dismissal case once thought to be watertight can quickly turn out to be nothing more than an empty shell.  Hence the importance of implementing adequate monitoring procedures documented in a policy brought to the attention of employees and employee representatives.