E-mail monitoring in the event of suspected bullying

from K. Schiefer

Inspecting an employee's emails to verify a suspicion of harassment is only permissible under strict conditions, as in such cases the employer must access the content of the emails and not just the technical connection data.

For a content review, it is of decisive importance whether the employer has prohibited the employee from using the company account for private purposes. It must be clear to the employee that the company account may not be used privately. Such a ban can be undermined by the employer knowingly tolerating private use for a longer period of time.

Such checks may only be carried out on a random basis and must be limited to a maximum period of one week in the past from the time of the check. Only the prohibition of private use may be checked, and bullying agreements must also be classified as such.

In addition, the works council must be informed prior to the inspection; the employee must be present during the inspection. However, possible works agreements must also be taken into account in these cases. If - as will often be the case - these agreements stipulate that the stored emails may not be used to monitor conduct, content monitoring is not permitted.

Nevertheless, evidence collected from such a check may be subject to a ban on the use of evidence in court, meaning that employment law measures could not be based on it. The situation would be different with a statement by the bullied employee in which he or she explains the private use of the system for bullying agreements. In the context of proportionality, the use of the employee's statement would be considered a more suitable means than a comprehensive check of all emails.

If the employee does not stand by his statement that there has been private e-mail use or does not want to confirm it, this statement cannot be used as the basis for an abuse control of the e-mail.