Practice areas: Employment Law
Employees communicate via email on a daily basis. As a result, the work email inbox contains a wealth of information: about projects, clients, but also about the employee’s own performance. As an employer, it may be tempting to look through an employee’s email inbox, for example, if there are suspicions of poor performance, secondary employment or fraud. But is that actually allowed? In this blog, we explore the possibilities and limits of searching through work emails.
Employees are also entitled to privacy in the workplace. This right is protected by Article 8 of the European Convention on Human Rights (ECHR) and the General Data Protection Regulation (GDPR). Checking or searching a work email account constitutes a form of monitoring and infringes upon that right to privacy.
However, this does not mean that it is never permitted. An employer must always act with due care and weigh up their interests against the employee’s right to privacy.
The most important framework for assessing email monitoring by employers stems from the case law of the European Court of Human Rights (ECHR). In the case Bărbulescu (ECHR 5 September 2017), the employer discovered that a Romanian employee was using his work email account to send private messages to, amongst others, his fiancée and brother. This ultimately led to his dismissal.
The Court ruled that the employee’s privacy had been violated. The right to private life also applies during working hours. An employer may not monitor employees’ email and internet use without clearly informing them of this in advance. As the employee in this case had not been warned, the monitoring was unlawful.
The ECHR applies various factors that are also used in Dutch case law:
The Arnhem-Leeuwarden Court of Appeal (ECLI:NL:GHARL:2022:6203) emphasised that these factors do not constitute a strict checklist, but must be weighed up in conjunction with one another.
One of the most important points is whether the employee has been informed in advance of possible monitoring. In the ING case (ECLI:NL:GHARL:2022:6203), the court found that the employee had not been informed in advance of the possible monitoring.
It is essential that the possibility of monitoring business emails is made known in advance. It is not necessary to specify exactly when monitoring will take place, but it must be made clear that monitoring may occur and in what manner. This can, for example, be set out in a staff handbook or IT regulations.
An employer requires legitimate grounds to search an employee’s email. Combating fraud is a classic example. In the aforementioned ING case, ING argued that email monitoring was necessary due to indications of fraud and possible money laundering.
The court recognised that this could, in principle, be a legitimate reason, but also emphasised that the specific circumstances must be clear in order to assess proportionality. A reference to an anonymous tip proved insufficient justification in this case.
If email monitoring is carried out unlawfully, this can have serious consequences. The Dutch Data Protection Authority, for example, may impose a fine. Furthermore, in dismissal proceedings, a (higher) fair compensation may be awarded to the employee if there has been a breach of privacy.
Searching an employee’s email inbox is not prohibited by definition, but it is certainly not without risk. An employer who monitors emails without a policy, without clear grounds or without properly weighing up the interests involved runs the risk of infringing the employee’s privacy. At the same time, where there are serious suspicions, there is certainly scope for intervention. In such cases, informing the employee in advance is essential.
Do you have any questions about monitoring employees’ work email accounts? Please feel free to contact us. We would be happy to help.
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