The Brussels' Labour Court recently ruled that the evidence that an employer had gathered after exploring its employee's email inbox was unlawful. The employer's subsequent termination for 'just cause', which had arisen on the basis of this obtained evidence, was therefore ruled unfounded.

The facts of this case can briefly be summarised as follows:

An employee informed his employer that he was not coming to work because he was feeling unwell and asked his employer to follow-up on or cancel 2 appointments that he had planned. The employer checked the employee's mailbox to verify with whom the employee had made these 2 appointments. When doing so, the employer noted a few e-mails of a personal nature to and from a family member or friend of the employee and accused the employee, on the basis of these e-mails, of unlawful competition. The next day, the employer terminated the employment contract of the employee for 'just cause' solely on the basis of the discovered e-mails. The employee disputed his termination for 'just cause' and argued that the reasons invoked could not be taken into account as they had been acquired by violating privacy rules.

The Labour Tribunal ruled against the employee in the first instance proceedings. The employee lodged an appeal before the Labour Court. The latter ruled in the employee's favour.

In particular, the employee argued that the employer had violated the CBA n° 81 dated 26 April 2002, as well as Article 8 of the ECHR and Article 2 of the Constitution.

While the Labour Court ruled that the employee could not call upon the CBA n° 81, as this CBA merely deals with electronic online communication data and not with the employer's examination of the content of e-mails sent or received by an employee via a company computer, the Court did recognise the violation of Article 8 of the ECHR and Article 2 of the Belgian Constitution. In this respect, the Labour Court ruled that the criterion of reasonable privacy expectations had to be applied, i.e. the employee could have reasonably expected that his employer would not gain any knowledge of the content of messages that were clearly of a private nature.

Moreover, the Labour Court assessed a violation of the Law of 13 June 2005 relating to electronic communications, as the employer intentionally gained knowledge of the information concerned without the permission of the persons involved and used it by calling upon the acquired information as a reason for the termination for 'just cause'.

Finally, the Labour Court examined the question whether this infringement affected the value of proof of the obtained evidence. In line with the Antigoon-principles, the Court stated that if the committed unlawfulness:

  1. is not liable to push aside the right to a fair trial;
  2. does not affect the reliability of the evidence; and
  3. does not misjudge any formal requirement that is prohibited under the penalty of nullity,

then the Court could take into account the unlawfully obtained evidence provided, however, that the unlawfulness committed by the employer when obtaining the evidence was in proportion to the gravity of the acts committed by the employee.

In the case at hand, the Labour Court ruled, however, that the unlawful obtaining of evidence by the employer was by no means in proportion to what the employer assessed upon inspecting the e-mails. The Court noticed that the actions of the employee to help a friend/relative with finding a job were possibly clumsy, but, according to the Court, the allegation of unlawful competition was a "bridge too far".

As a consequence, the Labour Court considered the termination for 'just cause' to be unfounded and granted an indemnity in lieu of notice to the employee.

This Labour Court judgment illustrates that employers must remain prudent when collecting evidence for a dismissal for just cause. If privacy rules are violated, then the Antigoon-principles will not always offer 'a way out'.

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