One of the problems a company may face during an internal investigation is the lack of compliance by its employees with the document retention notices. Document retention notices typically inform the relevant employees that an investigation is ongoing and that they should not delete any electronic or hard-copy information they may have in their possession with regard to the matter at hand. Turkish law does not oblige the employers to send such notices during an internal investigation. However, they are extremely useful in explaining to the employees what is going on and how they should act. On the other hand, employees usually operate under the misconception that the company computers, mobile phones and other devices provided to them by their employer can be regarded as their personal devices, and that they may use them as they wish. With that understanding, even after they receive a document retention notice from the employer, they may delete data which they believe might be self-incriminating. However, such deletion can have serious consequences on the employment relationship and can even lead to criminal liability for the perpetrators.
A recent UK case brings this issue into the spotlight. According to a Serious Fraud Office ("SFO") press release, an ex Sweett Group executive was sentenced to one year in prison because he destroyed or concealed two mobile phones, which he suspected or was aware that they contained information relevant to the SFO's anti-bribery investigation against his former company, the Sweett Group.
People who do not abide by the document retention notices sent by their companies may risk facing the same consequences as the above-mentioned employee. This is because the Turkish Criminal Code No. 5237 provides that any person who destroys, deletes, conceals, changes or corrupts the evidence of a crime in order to conceal the truth may be sentenced to imprisonment from six months to five years (Article 281). A person can be punished under this Article for concealment of evidence only if he or she did not commit the relevant crime or did not participate in the perpetration of the crime. Hence, if during an official criminal investigation by the public prosecutor (e.g., a bribery investigation), an employee (who did not commit or participate in the relevant crime) "destroys, deletes, conceals, changes or corrupts the evidence" with the belief that such information might implicate herself/himself vis-a-vis the employer, or even out of perceived loyalty to the company, they might be faced with imprisonment.
Even if things do not go as far as criminal prosecution, deleting data which is deemed potentially harmful can have negative consequences with regard to the employment relationship. Today, most multi-national companies incorporate clauses into their employment agreements, requiring employees to abide by the company's code of conduct. Codes of conduct typically include clauses that demand employee compliance with document retention notices. If employees who operate under such conditions delete any data from their company devices following a document retention notice, they will have explicitly and deliberately violated the company code of conduct. This could enable the employer to take disciplinary action against the employees in the best-case scenario. At worst, the employer may terminate the employment agreements of the implicated parties, depending on the severity of the circumstances.
From the employers' perspective, monitoring company devices used by the employees is not an easy task. A recent Turkish Constitutional Court decision (dated March 24, 2016) did confirm the employer's right to monitor corporate e-mails; however, the Court also laid down some ground rules. According to this decision, the monitoring should be proportionate to the employer's legitimate aim and the employer should refrain from unnecessary invasions of the employees' privacy. Such monitoring is a slippery slope that employers should pay utmost attention to, in order to ensure that employee rights are not violated.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in March 2017. A link to the full Legal Insight Quarterly may be found here.
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