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PC: Spam, Private Emails at Work |
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 John was known as the company clown, always ready for a joke. Often he
sent joke emails to his colleagues and got a lot of laughs.
His boss returned this laughter by terminating John’s employment
without notice. John vigorously fought for his position, and eventually
won in court. The judges held that since the boss had tolerated John
and his funny emails for an indefinite period of time, he could
not fire his employee without prior admonishment.
This raises the question of how to handle private email correspondence
at work: Is private internet and intranet use permitted at all? If
nothing is stipulated in the employment contract or company’s standard
rules, then the employee may not assume that private use is permitted.
This applies equally to placing private phone calls at work. The
employer has the right to either totally or partially forbid private
usage.
So in the case that nothing has been agreed upon in advance and the
boss knew of and tolerated private use for a serious period, he has to
first admonish his employee before giving notice. This admonishment is
defined as a written warning that such conduct is undesirable and must
not happen again, otherwise the employee will be terminated.
Even if private emails are permitted at work, they still must not violate three restrictions:
1.)
The boss, company and/or staff may not be insulted.
2.)
Nobody may be harassed by obnoxious or pornographic contents.
3.)
Punishable contents may not be transferred.
§2 II no. 2 Beschäftigtenschutzgesetz (Law on Protection of Employees)
rules that sexually oriented remarks, or behavior such as a pat on the
behind or near the “private areas of the body” already constitutes
sexual harassment. The Düsseldorf Labor Court (re 12 Sa 869/98) judged
that even simply downloading pornographic data justifies immediate
notice.
Bosses who want to spy on your employees' private emails should beware!
You may only screen them if you have reason to believe that your
employee is doing something illegal or forwarding business secrets –
disregarding the permission to receive private emails. Even if you are
not allowed to read private mail you can save transmission data (such
as the fact that an email was sent to somebody you do not have a
business relationship with). Illegally acquired information cannot be
used in court. In other words, you can use a transmission list showing
that your employee sent 100 emails of 1000 kbit each in size to unknown
persons in two days, which should help you legally to kick that person
out of the company.
 Alexander Baron von Engelhardt - Foreigners Attorney based in Berlin, specialising in domestic,
international, civil and commercial law. He also provides counseling
for start-ups.
Wilhelmstraße 94, D-10117 Berlin
Email:
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Website: www.Rechtsanwalt-AvE.com
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