It is end of the year and a time for family gatherings – but unfortunately also the time when many people may be on the verge of losing their jobs.
I’m not here to bring pessimism – just practicality on what to be careful of just in case you think something is not right at work.
For the most important parts related to what you need to prepare for – from the angle of getting fired, please read the following article.
The following article will give you a gist of what is considered private or not according to Swiss law and what your employer can use as evidence against you.
Duties of the employer to protect the personality of the employee
Under Swiss law, the employer must protect the personality of employees.
The “protection of the personality” of individuals under Swiss law covers all the essential values, physical, emotional and social that are linked to the person’s life including but not limited to physical and psychological integrity; physical and mental health; sexual freedom and respect for emotional life; honour, moral integrity and social consideration; individual freedom and privacy and the use of personal data.
From an employer perspective, this includes complying with the Swiss federal law on data protection.
This law provides that all treatment of personal data must respect the principle of proportionality, in other words your employer can only access your personal data if he/she proves that there were no other less intrusive means of getting the relevant information necessary to protect another prevailing public or private interest e.g. the protection of the workplace or the health of any other employee.
Can your employer read your personal emails and access your personal data saved on your office computer?
In a recent judgement of August 25th, 2021, the Federal Court of Switzerland fined an employer for breaching the privacy of his employee.
The employee’s contract was terminated with the regular notice period because of a management deficiency. After a couple of days, the employee was asked to delete all private data from his professional mobile phone before returning it to his employer.
The employer then heard that his employee had insulted colleagues and had inappropriate behaviour similar to sexual harassment in the workplace.
The employer therefore terminated the employee’s agreement with immediate effect during the notice period. The employer then began looking through the deleted personal data in the employer’s mobile phone to find evidence.
The judges of the Federal Court did not specifically analyse the question of whether or not the deleted personal data was or not directly related to the execution of the employment agreement and therefore permitted.
However, they considered that since other means were available to the employer to obtain evidence against his employee, such as the hearing of former employees, the collection of the personal data was deemed disproportionate and therefore constituted an unlawful breach of the employee’s right to privacy.
The employer was condemned to pay damages of CHF5,000 – to his employee.
If the emails accessed by your employer are related to the conclusion and the execution of your employment agreement, the access to your personal emails by your employer may be legally admissible. It may also be the case if your employer is looking for proofs to bring to a trial linked to your employment.
In another case, an employer was looking for evidence after firing an employee. One email produced in front of the Court was sent by the employee to his/her lawyer, although it was not identifiable, as such, at first sight.
The Federal Court considered the access to this specific email to be legally admissible, because the employer could not have known it was a personal email before opening and reading it.
This decision has caused a lot of criticism from some legal authors since the concerned should be covered by professional secrecy. However, other legal authors believe that if the employee wanted this email to be confidential, he should not have used his professional email to send it or at least saved it in a file named “Personal” or “Confidential”, which was not the case.
What is, or is not directly related to the execution of the employment agreement, depends on the appreciation of the judges examining the case.
- Be careful about what you write on emails and to whom in your workplace (or even on a public social media account) and remember any aggressive content may be used against you.
- It may be evident, but easy to forget when you’re stressed, don’t use your professional email address for correspondence with your lawyers.
- Anything personal (emails to friends, family, colleagues) which were accidentally received on the work email should be deleted and if absolutely necessary to save on the work email, they should be in a specific folder indicated as “Personal” or “Confidential”. The specific folder will anyway be accessible to your employer, whether or not he can use it against you will depend on the company policy, the content of the email etc.
- If the employer has a policy for no personal emails in the workplace, he / she may be able to access the “Personal” or “Confidential” folders because the court may consider that they should not have existed in the first place because of Company policy.
- Keep your professional and personal mobile phones separate to avoid personal information being accessible to your employer.
This article was prepared by Renuka Cavadini of Page & Partners.
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