Constitutional Court’s decision of 12 January 2021 concerning the application no. 2018/31036 discusses, once again, employer inspection on employees’ corporate e-mail accounts and the terminations relying on the collected correspondences, in scope of the right to protection of personal data and freedom of communication.
In the said decision, the Constitutional Court found no violation as to the right to protection of personal data and freedom of communication, since the employment contract stated that the employee was obliged to use the corporate e-mail for business purposes, and that the employer could always inspect the e-mail account. Furthermore, the decision shed light on the application of the principle of proportionality by stressing that the employer only examined the messages supporting his claims and used such correspondences during the trial process only to prove his arguments.
The applicant worked as a customer relations manager at a private bank. Upon receiving a complaint claiming that the applicant worked at a business registered in the name of his spouse, the company initiated an investigation and requested the employee’s defence.
The report issued by the bank inspector set forth that the employee:
- Founded a company in the name of his spouse,
- Sent various payment documents to the accountant of the said company through his corporate e-mail,
- Filed a loan application by conducting negotiations with other banks regarding the said company via his corporate e-mail,
- Submitted certain documents regarding the products in the business stocks from his personal e-mail account to his corporate e-mail account,
- Reviewed his spouse’s account on a frequent basis.
In his defence, the employee briefly stated that he:
- Kept the business, which he incorporated with his spouse, under his own supervision to avoid any loss,
- Assisted his spouse in several tasks such as payment and stock tracking,
- This situation impacted his work performance to a certain degree from time to time.
The employer terminated the employee by relying on valid reason on grounds that the employee carried out commercial activities over his spouse’s business during work hours in breach with the workplace rules, and hereby caused flaw in the course of work by neglecting his principal duty.
The employee initiated a re-instatement case against the employer, and the first instance court rejected the case. In the appellate examination, the Regional Court of Appeal upheld the first instance court’s decision by stating that the employer was able to prove the valid reason, and hereby finalized the decision.
In the application filed before the Constitutional Court, the applicant argued that:
- His correspondences on his corporate e-mail account have been reviewed without information or consent,
- His employment was terminated in an unlawful manner based on these correspondences,
- His work performance has always been very high,
- He had to give his written defence due to the bank inspector’s pressure and mobbing for the purpose of termination,
and claimed that his right to protection of personal data and freedom of communication have been violated.
Reasoning of the Constitutional Court
In the decision, the Constitutional Court stated that it must be examined whether the third party interfering in the right ensured the following securities, applicable to the appropriate extent in each case, in scope of the State’s positive obligations:
- The employer must have legitimate reasons justifying the inspection on the communication devices provided to the employees and their content.
- Inspection of communication and processing of personal data must be transparent, and the employees must be informed in prior. Information does not necessarily have to be made in a certain way, but it must include at least the following:
- Legal grounds and purpose of the inspection of communication and processing of personal data,
- Scope of inspection and processing of data,
- Retention period,
- Rights of the data subject,
- Consequences of inspection and processing,
- Possible beneficiaries of the data, and
- Restrictions projected by the employer regarding the use of communication devices.
- Interference must be related to the desired purpose and convenient for generating such purpose, and the employer must use the collected data in light of the desired purpose.
- The employer must have no other option to reach the desired purpose with less interference; and it must be examined whether the employer could reach such purpose without inspecting the employee’s communication.
- In order to deem the interference proportional, the data processed by way of inspecting the communication or used by any means must be limited to the desired purpose, and no restrictions or intervention exceeding this purpose must be allowed.
- It must be analysed whether the conflicting interests and rights of the parties are fairly balanced or not, by considering the impact of the inspection of communication.
The Constitutional Court ruled that processing of personal data by creating an e-mail account and conducting inspection on the communication stream aim to ensure an efficient conduct of work in respect of the employer, which provides financial services with a high number of employees in the pending case. In this regard, it held that providing employees with e-mail accounts with access to the communication stream and content constitutes a legitimate interest in terms of workplace management, and it is an eligible method to reach the desired purpose.
The Constitutional Court further stated that the applicant’s employment contract stipulated that the employee corporate e-mail was for business use only, and the bank management could carry out an inspection at any time without prior notification. Therefore, it ruled that the employer fulfilled the explicit information requirement and gave consent as to the inspection by signing the employment contract.
On the other hand, the decision suggests that the employer does not necessarily have to obtain employee consent before reviewing the corporate e-mail account on condition that it provides an explicit information; and employee consent would be deemed present and valid, unless proven otherwise, if the employee does not annotate an objection as to the inspection after receiving the information.
Furthermore, the decision stressed that the employer only reviewed the messages supporting the claims as to the employee working at another job and used such communication during the trial process to prove his arguments. In this regard, the Constitutional Court ruled that the employer conducted an inspection limited to the purpose of processing and used the collected data in compliance with the purpose.
Nonetheless, the Constitutional Court found no violation as to the applicant’s right to protection of personal data and freedom of communication.
The Constitutional Court’s recent decision of 17 September 2020 concerning the application no. 2016/13010 elaborated employer inspection on the employees’ corporate e-mail accounts in light of the same principles. The latter decision of the Constitutional Court once again draws attention to the importance of explicit information requirement in the inspections to be conducted by employers, and sheds light on the application of the principle of proportionality in scope of employer inspection.
 Published in the Official Gazette (31386) of 5 February 2021.
First published by ILO - Employment & Benefits Newsletter, in 24.02.2021