In January 2005, A was employed by the company B as a regional sales representative. When A began his employment, he was given a staff manual stating that mail sent to the company was the company's property. This also applied to mail marked confidential, personal, private as well as e-mails sent directly to the employee's work e-mail address.
In 2008, A was promoted to key account manager. On 16 June 2009 A was dismissed with effect from 31 October 2009 and was in that connection put on garden leave. B forbade A to contact B's employees as well as existing and prospective customers to discuss or mention B.
In connection with the termination of his employment, A claimed compensation for unfair dismissal. On 1 September 2009 the parties made a settlement agreement that involved B’s payment of DKK 30,000 to A.
In the period following the termination, B's managing director opened the e-mails sent to A's work e-mail address, including e-mails sent on A's private LinkedIn account. The reason was that A had stated his work e-mail as contact address on his LinkedIn account and had failed to change it after the termination.
On 18 September 2009 an e-mail was sent to A's work e-mail address with LinkedIn correspondence with an employee of one of B's customers, C. The e-mail said that C contacted A on 17 June 2009 to ask about A's garden leave. In the correspondence, A made various derogatory remarks about B and its management. B found that it constituted material breach of the employment, and A was consequently dismissed summarily.
A submitted that the correspondence with C was of a private nature and that C was - besides being a work colleague - also a good friend with whom A also discussed private matters. A argued that the correspondence has been conducted at A's private LinkedIn account which was by mistake still connected to A's work e-mail.
The Court of Horsens found that as a result of C's business relation to B and the nature of the correspondence, the correspondence could not be deemed to be of a private nature. The Court thus found for B, and therefore, A did not succeed in his claim. On these grounds, the parties agreed that the settlement that involved the payment of DKK 30,000 to A no longer applied.
iuno's opinion
The decision shows that an employer is entitled to read e-mails sent to the employee's work e-mail, if it is included in the employee's employment contract. At least in cases where the e-mails are not of a strictly private nature.
[Decision made by the Court of Horsens on 9 February 2011 in case no. BS 150-1945/2009]