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Created on Friday, 07 November 2008 23:16

Last Updated on Friday, 28 December 2012 18:38

Spam, Private eMails at Work

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 anindefinite period of time, he could not fire his employee without prior admonishment.

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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 BSchutzG 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 ArbG Düsseldorf (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 1,000 kbit each in size to unknown persons in two days, which should help you legally to kick that person out of the company.



Published on the old CMS: 2007/3/5
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