Messages exchanged on the private WhatsApp application installed by an employee on his professional computer are not necessarily protected by the secrecy of correspondence.
Social networks are an integral part of our lives. Private and sometimes professional. Be careful, however, that the border is clear because an employee questioning her layoff by her employer for having installed WhatsApp and having exchanged messages on her professional computer paid the price, as indicated in the legal letter of the Chamber of Employees.
According to a judgment of the Court of Cassation dated December 15, the messages exchanged on the private WhatsApp application, installed by the employee on her professional computer, are not protected by the secrecy of correspondence!
The Chamber of Employees recalls the beginning of this story. An employee was hired by a company under a permanent employment contract with a trial period of four months. Initially, she was dismissed during the probationary period on notice with exemption from work.
The employee then asks the labor court for the nullity of this dismissal because of her medically confirmed state of pregnancy. The president of the Luxembourg Labor Court decides to cancel this dismissal and orders the employee to remain in the company.
The story does not end there: the company proceeds in the wake of the layoff with immediate effect for serious misconduct of the employee after having read certain messages sent using the WhatsApp application, installed on his work computer.
Email left open, no password
The employee then contests the dismissal with immediate effect for serious misconduct and decides to take legal action against her employer. The Labor Court annuls the layoff and rejects the request for termination of the employment contract made by the employer who decides to appeal.
And there, surprise. In its judgment, the Court of Appeal validated the layoff pronounced against the employee. Indeed, she considers that the messages exchanged on the private WhatsApp application installed by the employee on the professional computer are not protected by the secrecy of correspondence.
The Court of Appeal considers that “in this case, it is established and not disputed by the employee that the disputed messages were exchanged on the professional computer made available to her by her employer, by means of the private application WhatsApp, which she had decided to connect to it, while the messages exchanged were not specifically identified as falling within her personal and private intimacy and they were freely accessible.
The Court underlined the fact that “by leaving this computer switched on and not protected by a password, thus allowing the direct reading on the screen of certain of the messages forming part of all the exchanges subsequently discovered, the employee necessarily conferred on these messages a professional nature, not protected by the secrecy of correspondence”.
The employee lodged an appeal in cassation considering that her right to respect for private life in her workplace had been violated. An appeal rejected in December! The Court of Cassation upheld the decision rendered by the Court of Appeal, noting that the messages invoked in support of the layoff and the request for termination of the employment contract appeared on the computer made available by the employer to the employee for the purposes of performing her salary duties, therefore on a professional tool.
The Court also specifies that the employer accessed this computer with a view to saving professional content, therefore for a legitimate reason within the framework of the organization of his business, and that the messages in question were not specifically identified as falling within the employee’s private sphere. The employer therefore did not have the possibility of identifying their personal character at first sight, adds the court.
The employer also had access to these messages while the messaging application had been left open, specifies the Court, thus allowing the direct reading on the screen of some of the messages in question. Access to these messages was not protected by a password, so the employer could not deduce their private nature.
The Court of Cassation considered that the judges of appeal had been entitled to hold that these messages were of a professional nature, not protected by the secrecy of correspondence, and could be invoked by the employer to justify the layoff and the request for termination of the employment contract. So be careful: social networks and the professional world sometimes go hand in hand.
