Professional emails are personal data

Facts

The employee, after the termination of his contract, requested access to all data concerning him, particularly his professional emails sent or received through his company mailbox.

The employee was faced with an allegation of sexually harassing one of his colleagues. He demanded that access to all his professional emails be granted to him, in a view of being able to build his defence for the anticipated disciplinary proceedings. His request was denied and other elements were disclosed to him.

Decision

The “Cour de Cassation” adjudicated that:

1. Professional emails are personal data, even when they are sent or received on their professional email server, in accordance with the interpretation of the Article 4 of the European Union General Data Protection Regulation (GDPR);
2. The employee can therefore request for access to those emails, both for their contents and for their metadata (timestamp, recipients, etc…);
3. Granting access to emails containing personal data, also implies granting access to the employee to files, internal data and any other documents containing his personal data;
4. The employer may only refuse access to those data, in strict and justified circumstances, for instance on the grounds of infringement of the rights of other individuals.

The Court also highlighted that it is quintessential for an employee to have the right to retrieve his professional emails to defend his rights, including after his departure.

There is a duty on the employer to communicate to the employee all of his personal data and communication of “un bon nombre d’elements” (disclosure of some elements) was not enough, inasmuch as the personal data contained in the professional email was not disclosed. The power for the employer to engage in a “pick and choose” disclosure exercise, gives rise to serious prejudice to the employee to properly prepare his case.

Many employers tend to suspend their employee’s access to company “data and servers,” pending a disciplinary enquiry, preventing them to properly build their defence around their emails, files and internal evidence (deemed to be the property of the company). This practice, often deemed unfair, hinders the fundamental rights guaranteed by Art 15 of GDPR (Right of access by the data parties) and Article 6 of the European Convention on Human Rights (right to a fair trial).

Commentary

This decision of the French Cour de Cassation is inclined to give flexibility to an employee to retrieve emails from his professional email inbox, which many employers are reluctant to allow once the employee is under suspension pending a disciplinary hearing or his/her employment has been terminated.

The Court has taken the view that preventing the employee access to his professional emails is unfair especially if the employee would need to rely on these email contents to prepare his defence.

Whilst the Court did draw a line and set a limit to what could be retrieved, for example, the company’s confidential information cannot; the Court did not give an exhaustive list.

Would an employee be allowed to have access to his professional email account, after termination of his employment, to retrieve, for example, photographs and correspondences he would have written during office hours for personal matters. Can an employer argue that the employee ought not have used his work computer to do this and therefore access can be denied?

This decision is likely to have an impact on the jurisprudence in Mauritius and employers ought to seek advice before taking any steps which may affect the rights of an employee to a fair hearing before a disciplinary committee. This may have a more severe impact in the event the matter ends in a dispute before the Court.

Contribution to this article: Ayush Ramsooroop (pupil to Yahia Nazroo)