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HR Legal

Unlawful to summarily dismiss employee for forwarding confidential information

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Legal news
calendar 23 January 2020
globus Denmark

Pursuant to the Danish Eastern High Court, it was not disloyal that an employee had forwarded confidential information to his private e-mail to continue work from home during his employment. Consequently, the company could neither justify to summarily dismiss nor to terminate him. Among other things, the court emphasised that the employee never had the intention to share the information without authorization.

After a short period with collaborative problems, a sales manager requested his manager for a meeting. At the meeting, the employee explained that he was feeling unwell and that he felt that he was poorly treated in the workplace. In response hereto, the manager replied that if he couldn’t stand the heat, he should get out of the kitchen. Following the meeting, the employee finished his assignments and then submitted an e-mail to the manager stating that he was on sick leave and that, consequently, a client meeting scheduled the next day would have to be moved.

Later that day via e-mail, the manager requested the employee to confirm that he had resigned from his position during the meeting. The employee rejected that this was the case and restated that he was currently on sick leave. On the following day, the employee was called to a meeting with the reason that it had come to the company’s attention that he had sent at least 24 e-mails with confidential, work-related information to his private e-mail over the course of his employment. The employee never responded to the meeting invitation and did not participate in the meeting. A few days later, he was summarily dismissed. According to the company, the employee had unlawfully been absent from work and, in addition, had also breached his duty of loyalty towards the company by forwarding the confidential information to his private e-mail. The employee disagreed and maintained that the decision to summarily dismiss him was unlawful and that, as a result, he was entitled to compensation.

The Danish Eastern High Court initially rejected the company’s argumentation that the employee unlawfully had been absent from work as he had been on sick leave. The main question was, therefore, whether the employee had materially breached his duties of employment and if the company lawfully could summarily dismiss him for forwarding the confidential information his private e-mail from his work e-mail. 

Use of private e-mail was not a breach of the duty of loyalty

According to the employee, his position as sales manager entailed that he had to be available for customers day and night, including weekends. Although the company had equipped him with a computer, he preferred to use his private computer as it was both more efficient and reliable. He also emphasised that he always had performed his work in a loyal manner and only forwarded the information to his private e-mail with the sole purpose to continue his work from home and while on business trips. Contrarily, the company argued that the employee unwarranted had forwarded the company’s trade secrets and that unauthorized publication could result in substantial negative consequences for the company’s reputation and business.

The Danish Eastern High Court found that irrespective of the fact that the employee had sent confidential information to his private e-mail, the information was limited to what he had had access to as part of the performance of his assignments. Furthermore, information had only been sent to facilitate his work from home to the extent possible. On a final note, the court emphasised that the e-mails had been sent more than half a year before the collaborative problems of the parties had begun. Based hereon, the Danish Eastern Court concluded that the employee had not breached his duty of loyalty towards the company by sending the information to his private e-mail. The employee was, therefore, entitled to compensation.

IUNO’s opinion

Among other things, the judgement demonstrates that before proceeding to dismissal, companies must be able to properly document which requirements employees are subject to when processing the company’s confidential information.

IUNO recommends ensuring that the company’s IT-policy expressly considers the employee’s use of their private electronic devices and private e-mail accounts in a work-related context. It is also crucial that companies in practice enforce such policies which will otherwise loose their effect.

Companies must generally be aware of whether the IT-policy and other policies adhere to the high level of protection under the GDPR. Many cases on data breaches result from employees’ poor handling of data in connection with working from home or business trips. 

[The Danish Eastern High Court case BS-6900/2019 of 29 October 2019]

After a short period with collaborative problems, a sales manager requested his manager for a meeting. At the meeting, the employee explained that he was feeling unwell and that he felt that he was poorly treated in the workplace. In response hereto, the manager replied that if he couldn’t stand the heat, he should get out of the kitchen. Following the meeting, the employee finished his assignments and then submitted an e-mail to the manager stating that he was on sick leave and that, consequently, a client meeting scheduled the next day would have to be moved.

Later that day via e-mail, the manager requested the employee to confirm that he had resigned from his position during the meeting. The employee rejected that this was the case and restated that he was currently on sick leave. On the following day, the employee was called to a meeting with the reason that it had come to the company’s attention that he had sent at least 24 e-mails with confidential, work-related information to his private e-mail over the course of his employment. The employee never responded to the meeting invitation and did not participate in the meeting. A few days later, he was summarily dismissed. According to the company, the employee had unlawfully been absent from work and, in addition, had also breached his duty of loyalty towards the company by forwarding the confidential information to his private e-mail. The employee disagreed and maintained that the decision to summarily dismiss him was unlawful and that, as a result, he was entitled to compensation.

The Danish Eastern High Court initially rejected the company’s argumentation that the employee unlawfully had been absent from work as he had been on sick leave. The main question was, therefore, whether the employee had materially breached his duties of employment and if the company lawfully could summarily dismiss him for forwarding the confidential information his private e-mail from his work e-mail. 

Use of private e-mail was not a breach of the duty of loyalty

According to the employee, his position as sales manager entailed that he had to be available for customers day and night, including weekends. Although the company had equipped him with a computer, he preferred to use his private computer as it was both more efficient and reliable. He also emphasised that he always had performed his work in a loyal manner and only forwarded the information to his private e-mail with the sole purpose to continue his work from home and while on business trips. Contrarily, the company argued that the employee unwarranted had forwarded the company’s trade secrets and that unauthorized publication could result in substantial negative consequences for the company’s reputation and business.

The Danish Eastern High Court found that irrespective of the fact that the employee had sent confidential information to his private e-mail, the information was limited to what he had had access to as part of the performance of his assignments. Furthermore, information had only been sent to facilitate his work from home to the extent possible. On a final note, the court emphasised that the e-mails had been sent more than half a year before the collaborative problems of the parties had begun. Based hereon, the Danish Eastern Court concluded that the employee had not breached his duty of loyalty towards the company by sending the information to his private e-mail. The employee was, therefore, entitled to compensation.

IUNO’s opinion

Among other things, the judgement demonstrates that before proceeding to dismissal, companies must be able to properly document which requirements employees are subject to when processing the company’s confidential information.

IUNO recommends ensuring that the company’s IT-policy expressly considers the employee’s use of their private electronic devices and private e-mail accounts in a work-related context. It is also crucial that companies in practice enforce such policies which will otherwise loose their effect.

Companies must generally be aware of whether the IT-policy and other policies adhere to the high level of protection under the GDPR. Many cases on data breaches result from employees’ poor handling of data in connection with working from home or business trips. 

[The Danish Eastern High Court case BS-6900/2019 of 29 October 2019]

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Anders

Etgen Reitz

Partner

Søren

Hessellund Klausen

Partner

Kirsten

Astrup

Associate

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