Decision By The Constitutional Court On The Inspection Of Employees’ Corporate E-Mail Accounts
Employer’s inspection of corporate e-mail accounts of employees is a matter which, most of the times, must be considered by observing a compelling balance of interests between the employer’s management authority and the employee’s fundamental rights and freedoms. The Constitutional Court, by its decision published in the Official Gazette dated February 05, 2021, considered, with a detailed reasoning in accordance with certain fundamental principles, that the freedom of communication and the right to request the protection of personal data of an employee whose employment agreement was terminated based on the evidences obtained through an inspection of such employee’s corporate e-mail account were not violated.
The Applicant Employee’s Violation Claim
An investigation was initiated against the applicant, a bank employee, based on a claim that the applicant was working simultaneously for a business owned by his wife. The employee’s correspondences via his corporate e-mail account was inspected, and his involvement in such activities as negotiating loans with other banks in relation to his wife’s business was discovered. At the outcome of such investigation, the employee’s employment agreement was terminated by the employer on the ground that he, neglecting his main duty, was engaged in a commercial activity other than those which fall within the scope of his main job description during working hours. Subsequently, the reinstatement lawsuit brought by the employee was dismissed by the court of first instance, and the Regional Court of Justice upheld that decision.
The employee, thereafter, resorted to the Constitutional Court and, in brief, asserted that his communication through corporate e-mails had been reviewed without prior notification and his consent thereon, his employment agreement had been unjustly terminated based on such communication due to underperformance, and his right to respect for private life and freedom of communication were violated due to the fact that the Court took the contents of the e-mails as evidence constituting the basis for its decision.
The Constitutional Court Decision
In its decision, the Constitutional Court highlighted, in line with its previous decisions, that:
~ Legitimate grounds for inspecting communication tools and contents made available to the employee must exist, in particular, higher standards for justification must be sought for the inspection of the content;
~ Notification to the employee relating to the processing of personal data and the inspection of communication must be made transparently;
~ Intervention by the employer must be relevant to the intended purpose and appropriate for achieving such purpose,
~ Intervention must be limited and proportionate to the purpose.
An important issue that the Court addressed in its decision is that if the employee is explicitly informed of employer’s authority on inspection of corporate e-mails, no further consent from the employee would be required, since the employee’s consent would be deemed to exist provided that the employee does not expressly object to the employer’s inspection authority. In other words, in this case, the employee would be required to prove that he did not consent to the inspection.
In the present case, the employment agreement executed between the employer bank and the employee clearly sets out the inspection procedure and scope, and stipulates that the agreement should be terminated in the event of non-compliance with the referred matters within the scope of the inspection. Accordingly, the Constitutional Court ruled that the employee had agreed to the employer’s inspection authority by signing such agreement, and no further notification to the employee would have been required.
In light of all of the foregoing, the Constitutional Court ruled that the right to request the protection of personal data and the freedom of communication, forming the basis of the subject-matter of the application, were not violated. The inspection by the employer of the corporate e-mail accounts were considered to be in the legitimate interest of the employer and the employee’s express consent were not sought as the employment contract specifically entitling the employer to inspect corporate e-mails. The decision, in our opinion, carries an importance in particular respect to the effect of the provisions relating to the employer’s right to inspect which would be included in employment agreements, and would, in all respects, shed light to the practice in terms of in-company inspections and investigations.