In a judgment of 9 September 2016 the Brussels Labour Court had to rule on a dismissal for serious cause (Brussels Labour Court, 9 September 2016, AR 2015/AB/624, unedit).
The facts can be summarized as follows:
An employee notifies his employer that he cannot get to work because he is not feeling well and asks to follow up on or to cancel two planned meetings.
The employer then checks the employee's mail box in order to verify what meetings are concerned. During this check the employer draws some conclusions based on the emails located in the employee's inbox. It concerns personal emails directed to a relative or to a friend of the employee. Based on these findings the employer terminates the employee's employment contract for serious cause.
It should be noted that the employer did not use any other evidence besides the emails found in the employee's mail box.
The question we need to ask ourselves is to what extent we can take into account the emails found by the employer in the employee's mail box.
The employee argues that these messages cannot be taken into account since they were obtained by violating his privacy. He invokes the provision of article 8 of the ECHR and the provisions of CLA n° 81 concluded in the National Labour Council on 26 April 2002, on the protection of the privacy of employees with respect to the monitoring of electronic online communication data.
The Labour Court starts by stating that the employee cannot invoke the provisions of CLA n° 81 since they only relate to electronic online communication data and not to the monitoring by the employer of the content of the emails sent and received by the employee from the company computer.
However, according to the Labour Court this does not prevent the employee from being entitled to the protection of his privacy, pursuant to article 8§11 ECHR and article 22 of the Constitution. The Labour Court finds that the aforementioned articles have been violated, based on the criterion of reasonable privacy expectation. The employee can reasonably assume that the employer will not read the content of emails that are clearly private, even when they are located in his mailbox on a computer provided to him by the employer.
The Labour Court also finds that the Act of 13 June 2005 on electronic communications has been violated, since the employer deliberately read the information concerned and even used it by invoking the information obtained as a serious cause.
Finally, the Labour Court examines whether this violation affects the evidential value of the materials obtained.
Taking into account case-law by the Supreme Court, the Labour Court states that when the unlawful act committed does not impair the right to a fair trial, does not affect the reliability of the evidence and does not deny the procedural requirement prescribed under penalty of nullity, the judge can take into account the question whether the unlawful act committed is in proportion to the seriousness of the infringement the unlawful act of which lead to the findings.
According to the Labour Court's ruling, in the case at hand, the emails found by the employer in the employee's mail box cannot be taken into account. The employer's attitude (reading 1 email without permission and checking the other emails) is not in proportion to what was found during the verification. As such, the dismissal for serious cause has been rejected.
Unlawfully obtained evidence cannot be taken into account if the employer's behaviour is not in proportion to what was found during a verification.