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02-25-2022Article

Update Employment Law March 2022

Extraordinary dismissal for copying and forwarding an email attachment to third parties

LAG Cologne, November 2, 2021 – 4 Sa 290/21

The State Labor Court Cologne (LAG) has decided that reading, copying and forwarding an email and an email attachment (the content of which was a private chat history) that are clearly intended for another addressee, can justify extraordinary instant dismissal in certain cases. This also applies if access to the email account was permitted for the performance of work tasks.

Facts

The plaintiff had been employed with the defendant for 23 years, working in administration, including the accounts department. The defendant is part of a church district organization. Within the framework of her official duties, the plaintiff was permitted to access the email account of the church parish.

In 2019, the defendant granted Ms. A church asylum. The defendant's priest and the asylum-seeking woman had a relationship in 2019. Investigation proceedings were pending against the priest concerning possible criminal misconduct in this context. 

In November 2019 the priest's superior sent the priest an email stating that the asylum-seeking woman was staying in a specific parish. According to the plaintiff, the superior also drew the priest's attention in this email to the ongoing investigations against him. The plaintiff read this email and printed it out. The plaintiff also opened an email in the same email account which had an attachment showing a private chat history between the priest and the asylum-seeking woman. She copied such file onto a USB stick. The plaintiff dropped this stick into the letterbox of a third party known to her - anonymously and without further explanation. Although the third party was a member of the parish, she had no official function. It was not until later that the plaintiff also handed the chat history over to the Public Prosecution Service. 

In August 2020 the Public Prosecution Service dropped the investigations against the priest. 

After the "data theft" had been detected and clarified, the defendant dismissed the plaintiff without notice.

Good cause

The LAG declared that the dismissal was effective. There was a reason justifying extraordinary instant dismissal. The plaintiff had unlawfully opened and read emails that were clearly not intended for her. Even more serious however, was the fact that she had printed out the email and passed the copied data to a third party.

The plaintiff was only authorized to access emails for the purpose of fulfilling her duties under her employment contract. The plaintiff was well aware that the email was not intended for her, and that she did not  need to read it for the purpose of fulfilling her duties. She had committed further violations of duties by printing out and copying the email. Whether reading would have constituted an important cause by itself is left undecided. By printing out and copying the email, the plaintiff had significantly overstepped her authority. It was no longer possible to talk of an oversight in the case at hand.

Possible justification

The plaintiff claimed that she had wanted to comply with her civil duty and to perpetuate evidence for the investigation proceedings that were still pending at the time in question. The plaintiff stated that she was securing the emails as they would be deleted by the parties involved but she did not explain what made her think they would do so. 

The plaintiff had aggravated the violation of duties even further by forwarding the unlawfully obtained data to an outside third party. The third party had been a person of trust for the asylum seeker. However, she had no official function in the parish. The plaintiff had not handed over the "evidence" directly to the Public Prosecution Service or police (this was not done until later). Rather, she forwarded a private chat history to a third party and, by so doing, had seriously violated not only the priest's personal rights but also those of the asylum seeker. 

The forwarding had not been for the purpose of perpetuating evidence. The placing in the third party's letterbox had been carried out anonymously and without "instructions". What the third party would do with the data was anybody's guess. Theoretically, that person could also have given the data to the press or to additional third parties. By forwarding the data, the plaintiff had completely relinquished control over this data.

Conclusion

It will never be possible to establish whether the plaintiff acted with noble intentions or not, even if the court by all means had doubts in this respect. At the very least, the plaintiff chose the wrong course of action and should primarily have contacted other parties, e.g. the investigation authorities.

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