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10 Jul 2023 Is an employee allowed to clean up his business mailbox just before exemption from work and termination of employment?

This article concerns the situation of an employee who is exempted from work because he has been notified that his job and responsibilities are to be terminated. A settlement agreement is then signed by the employer and the employee, but the employer subsequently finds out that after the settlement agreement was signed, the employee emptied the entire contents of his business emailbox. Employee is then summarily dismissed by employer. Does this summary dismissal hold up?

Employee was employed by employer in the position of IT&E specialist. On November 23, 2022, Employee sent approximately 300 emails from his business email address to his private email address. On November 30, 2022, employer notified employee that, due to the arrival of a new website, employee's duties would cease.

In that context, the parties entered into a settlement agreement with each other on December 28, 2022, to terminate the employment contract by mutual consent.

After entering into this settlement agreement, employee emptied the entire contents of his business e-mail address. Employer finds out at some point that employee's mailbox is empty and asks employee for clarification.

While employee's mailbox could be retrieved, employer subsequently discovered that emails from the marketing mailbox had also been deleted.

After hearing the employee, the employer summarily dismissed the employee.

The settlement agreement thus lapsed.

The Employee then requested the Subdistrict Court to annul the summary dismissal and to award him € 10,000 in damages.

The employer then submitted a conditional request for termination.

In the opinion of the Subdistrict Court, the cleaning up of a business mailbox prior to the employee being released from work shortly afterwards did not constitute an urgent cause for summary dismissal.

According to the Subdistrict Court, there is no evidence that the employee deleted the mailbox in order to deliberately hide something from the employer.

Also the actions with regard to the marketing mailbox do not constitute an urgent cause for summary dismissal.

In this context, the Subdistrict Court considered that it had not been established that the employee had deleted emails from the marketing mailbox. The Subdistrict Court did consider that (co-)sending (sensitive) business information to a private email address, as the employee did by forwarding 300 business e-mails to his private email, constitutes serious conduct, even if no (concrete) rules have been laid down in this regard.

According to the Subdistrict Court, an employee must understand, that this behavior can have consequences for the relationship with his employer.

The Subdistrict Court came to the opinion that, based on all the circumstances of the case, summary dismissal was not proportionate.

The summary dismissal is declared void.

In the conditional request for termination, the Subdistrict Court concluded that the employee had acted in a culpable manner.

The Subdistrict Court dissolved the employment contract, but awarded the employee the statutory transition payment of €3,000.

With regard to the settlement agreement, the Subdistrict Court held that the parties could no longer derive any claims from it, as the employment contract did not end by mutual consent, but instead by this dissolution of the employment contract.

You can read the judgment here

It follows from this ruling that it is important for employees to consider carefully whether it is wise to forward business emails to a private email address and/or to delete business emails. After all, this can have far-reaching consequences. For employers, it is advisable to ensure that there is a clear protocol in place within the company regarding the forwarding of business emails to private email addresses and/or the deletion of business emails, including a description of the sanctions involved. The employment lawyers at SPEE advocaten & mediation will, of course, be happy to assist you in such cases.

SPEE advocaten & mediation Maastricht

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