The Court of Appeal recently considered the conditions under which employers can access their employees' workplace correspondence and use such correspondence as evidence in court.(1)

Facts

The employer alleged that his employee, a legal officer, who had already been dismissed with notice for other reasons, had:

  • sent his lawyer, via her work address, emails containing internal company documents and files relating to the employer's clients; and
  • received, via his work email address, professional emails from his partner which contained a model trademark licensing agreement, a power of attorney, a delegation of powers and minutes regarding his company's liquidation.

These acts, which were committed prior to the employee's dismissal with notice, but discovered by the employer during his notice period, led to the termination of the employee's employment contract for serious misconduct, as the contract expressly prohibited the private use of computer equipment made available to employees by the employer.

According to the employee's lawyer, the employer had not been entitled to access the emails under the principle of the secrecy of correspondence. As such, the emails did not constitute lawful evidence and could not justify the employee's dismissal with immediate effect.

Legal background

The courts have always recognised the applicability of the principle of the secrecy of correspondence in the workplace.(2) As such, employers cannot read the personal and private correspondence of their employees, even if such correspondence is issued and received via their work computer.(3)

However, it is accepted that employers may infringe their employee's privacy if there is a valid business reason to do so, subject to certain conditions. That said, safeguarding employees' rights to a private life must be considered.

Decision

The Court of Appeal held that:

  • to constitute unlawful proof, a document must contain an employee's personal and private data; and
  • employers cannot subject an employee's work computer, including their correspondence, to exclusive and continuous monitoring.

In its application of these principles, the court held that the disputed emails in the case at hand constituted a valid means of proof as it was unclear that:

  • any of the emails (except one which the employee had sent from his professional email address to his partner's private email address) would have been stored in a private file; or
  • the employer would have recorded the employee's data and carried out exclusive and continuous monitoring of his correspondence. In this regard, the employer had discovered the emails in question by performing a search of the employee's professional messages during his notice period as part of the winding up of his business affairs.

Regardless of the above findings, the court considered that the dismissal with immediate effect based on these emails was abusive as the employer had not specified the consequences of sending such emails to his employees.

Comment

This judgment confirms the current jurisprudential trend(4) under which employers may occasionally access their employees' computers, including their work emails (provided that this can be justified by an indication or suspicion of misconduct or is necessary for the continuation of the employer's business at the time of the employee's departure). Further, any document following such access which concerns only professional data will, in principle, constitute a lawful means of proof.

As such, employers must exercise vigilance as soon as they come across files which are classified as 'private' or emails which contain attachments or information which is characterised as 'private' or clearly suggests that it is private. The opening of such emails should, in principle, be permissible only in the presence of the employee or with their express authorisation.

For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (guy.castegnaro@castegnaro.lu or ariane.claverie@castegnaro.lu). The Castegnaro website can be accessed at www.castegnaro.lu.

Endnotes

(1) Court of Appeal, 31 May 2018, 43972.

(2) Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 provides that "everyone has the right to respect for his private and family life, his home and his correspondence".

(3) See, in particular, Court of Appeal, 12 November 2015, 41245; Court of Appeal, 3 March 2011, 35462; Court of Cassation, 2 October 2001, 99-42942 (Nikon). This principle was also recalled by the European Court of Human Rights in its 22 February 2018 judgment in Libert v France (588/13).

(4) Court of Appeal, 12 November 2015, 41245; Court of Appeal, 3 March 2011, 35462.

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