Personal emails in a professional mailbox: when does perusal become a valid ground for dismissal?

Taking cognisance of a personal e-mail from a colleague’s professional mailbox is not an urgent reason, deliberately and knowingly forwarding it to third parties, is

Brussels Labour Court, October 16, 2024, 2022/AB/137

The Brussels Labour Court recently ruled on a dismissal for serious cause regarding the forwarding of a colleague’s e-mail of a personal nature to third parties, by another employee.

The facts were as follows: an employee consulted a colleague’s mailbox to solve a problem with a customer. The employee thus bumped into an e-mail showing that his colleague was applying for another position. He sent this e-mail to a hierarchical superior and a staff member from another entity of the group (HR manager) with the comment ‘lovely… ’.

The employee is eventually dismissed for an urgent reason, which he later disputes. He claims severance pay and compensation for manifestly unfair dismissal.

The Labour Court stated that the perusal of the e-mail in his colleague’s mailbox took place in a professional context according to company custom and with the knowledge of his colleagues, and was accidental and unintentional.

The court went on to state that the perusal of the e-mail of a colleague’s personal nature thus does not constitute misconduct, but, on the other hand, it does for the deliberate and intentional transmission of that personal e-mail, for the following reasons:

1. The dismissed employee could not seriously pretend that he could not appreciate the personal nature of the e-mail, given the addition of his ironic comments when forwarding the e-mail to third parties;
2. Given that the e-mail was neither addressed to the dismissed employee nor intended for him and that this e-mail was not of a professional nature, the dismissed employee wilfully disclosed this e-mail to third parties to the communication.

The Court further states that if it is true that an employee who accidentally learns of the contents of a personal e-mail of a colleague does not intend to violate the rules on the protection of personal data, it is a very different story when this employee forwards this personal e-mail to two other persons, in this case a hierarchical superior and a staff member of another entity of the group.

Further, the Court states that such deloyal act leads to the violation of his obligation to respect his colleague’s personal data, confidentiality and the trust that must prevail in working relations between colleagues.

The employee also committed an infringement of Article 124, 4° of the Act of 13 June 2005 on electronic communications.

The Court ultimately dismissed the employee’s claims given that the urgent reasons were well-founded in substance.

It is noteworthy that the Court ultimately did not cite the principles of the AVG (General Data Protection Regulation) and the principles of the Data Protection Authority given the total lack of consent of the colleague regarding the personal e-mail. Nevertheless, the personal e-mail and its content constitutes personal data within the meaning of Article 4.1) of the AVG, as it relates to information about an identified or identifiable natural person. The consultation and transmission of the e-mail is also defined as ‘processing’.

Indeed, it could be concluded that the employee concerned breached the provisions of the AVG, such as the purpose limitation principle (Article 5.1(b) AVG), being that the data should not be further processed in a way incompatible with those purposes (solving a customer’s problem) combined with the non-compliance with data minimisation (5.1(c) AVG), being the processing of data only that is adequate, relevant and limited to what is necessary in respect of the purpose.

The employee concerned, when searching through his colleague’s mailbox, when he stumbled upon the e-mail in question, should first have decided not to open it. One can accidentally and unintentionally bump into a personal e-mail but one cannot accidentally open it and read its contents. This requires conscious actions.

Indeed, the employee knew that this was an e-mail of a personal nature (and, moreover, cannot seriously dispute this given the ironic remark) as well as that the e-mail was irrelevant and sufficient to solve the customer’s problem.

The court might consider that mere ‘accidental’/‘non-intentional’ consultation of the personal e-mail is not serious and serious enough to warrant dismissal for serious cause on grounds of breach of the AVG. However, the court ruled that the deliberate forwarding of the private e-mail to third parties with the addition of an ironic remark was a bridge too far.

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For further information or advice, please do not hesitate to contact Damien Stas de Richelle, Damien.Stasderichelle@laurius.be, Senior Partner and Olivia Vansteelant, Olivia.Vansteelant@laurius.be, Senior Associate