Belgium: Searching Professional Inboxes And Discovering Serious Cause For Dismissal: Employers Beware!

Last Updated: 18 December 2017
Article by Catherine Longeval

Most Read Contributor in Belgium, December 2018

In a judgment of 13 September 2017 (Liège, 13 September 2017, A.R. 2015/222/A,, the Liège Labour Court of Appeals (the "Labour Court of Appeals") upheld a judgment in which the Liège Labour Court of First Instance had ruled that an employee cannot be dismissed for serious cause following the discovery of insulting language in a private e-mail sent by the employee through her professional mailbox.

In the case at hand, the employer accessed the professional mailbox of an employee while she was on leave presumably in order to handle a customer request. The employer claimed that, in the process of so doing, he stumbled upon an e-mail sent by the employee to her husband in which she referred to her employer in a disparaging manner. The employer subsequently terminated the employment contract with the employee alleging a breach of trust resulting from the e-mail concerned. The employee brought an action against her former employer challenging her dismissal for serious cause as well as the reasons invoked for such a dismissal. The Labour Court sided with the employee and ordered the employer to pay an indemnity in lieu of notice. The employer lodged an appeal.

In reaching its decision, the Labour Court of Appeals examined whether the employer's actions conformed with the employee's right to privacy. The Labour Court of Appeals assessed in turn: (i) the legality; (ii) the purpose; and (iii) the proportionality of the employer's accessing of the employee's private e-mail.


The Labour Court of Appeals held that the employer had respected the principle of legality as the employee had been made aware of the provisions of the work rules regarding the employer's control of the electronic means of communication.


With respect to the legitimate purpose principle, the Court observed that, amongst the four purposes laid down in the work rules as a basis for the monitoring of the electronic means of communication, only the fourth one, i.e., the economic interests of the company, could justify the control operated by the employer. Nevertheless, the employer failed to prove that he had been forced to search the mailbox of his employee for the sake of his business interests.


Concerning the proportionality principle, the Labour Court of Appeals held that the employer had exceeded his powers as the e-mail at issue was entitled "Hello", and thus was manifestly private. Hence the balance between a prospective economic purpose (unproven in the case at hand) and the respect for privacy had been breached.  Accordingly, the Labour Court of Appeals declared the accessing of the private e-mail illegal.

Nevertheless, illegally obtained evidence is not automatically inadmissible. Therefore, the Labour Court of Appeals applied in a second step the "Antigone" case-law. Broadly speaking, under this case-law a judge should ignore evidence which was unlawfully obtained in three cases: (i) breach of formalities prescribed under penalty of nullity; (ii) infringement impacting the reliability of the evidence; and (iii) use of evidence resulting in a violation of the right to a fair trial.

While the Labour Court of Appeals acknowledged the existence of that case-law, it relied on Article 8(2) of the European Convention on Human Rights (the "ECHR") which enshrines the right to respect for private life, to state that the voluntary breach of privacy committed by the employer meant that the evidence (i.e., the e-mail) must be considered as inadmissible. According to the Labour Court of Appeals, the three criteria above cannot be relied on where there has been a breach of privacy. The "Antigone" case-law must be applied in combination with a general proportionality test. A balance between the various interests of the parties must be sought and maintained (see, ECHR, 5 September 2017, Bărbulescu v. Romania, no. 61496/08). As a result, the Labour Court of Appeals dismissed the employer's appeal.

In light of the above, employers must be particularly careful should they decide to dismiss an employee for serious cause following a search in the employee's professional mailbox.  Such an approach could infringe Article 8, ECHR or a rule of domestic law (such as Collective Bargaining Agreement No. 81). In addition, employers should pay particular attention to the controls operated to determine whether their employees fulfil their obligations and should always keep in mind the principles of legality, purpose and proportionality.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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