Are you entitled to monitor employee e-mails when they are absent?

Be vigilant and proceed with care

Checking and monitoring the mailbox of an absent employee for no reason is not a good idea. It is advisable to be vigilant and proceed with care. You have to maintain a balance between privacy and continuity.

• To start with, you must observe a number of rules, i.e. the GDPR rules, Belgian regulations pertaining to electronic communications and the national CLA No. 81, which focus on the protection of employee privacy.
• Monitoring must have a legitimate purpose and activities must be proportional and transparent.
• You should also notify your employee in advance concerning the use of the mailbox and the procedure in the event of their absence.

If you monitor the mailbox of absent employees or former employees unlawfully, you risk incurring sanctions.

What if your employee is absent?

The (sudden) absence of an employee should not compromise the successful operation of your business. In order to avoid this you, the employer, are entitled to monitor the mailbox of absent employees.

Business continuity is consequently a legitimate objective, but it can only be achieved in a transparent and proportionate manner and specific assessments will be made to verify that this is the case.

Prevention and balancing of interests

As an employer, you can impose a number of measures to strengthen your position if a dispute should arise with your employee, e.g. take preventive measures to limit or make access to the mailbox unnecessary. Also formulate an unequivocal policy, appoint a trusted person who is entitled to monitor the mailbox and compel your employees to set an out of office message in the event of their absence.

Before accessing your employee's mailbox, you should consider the interests at stake. How long will your employee be absent or how important is it for certain tasks to be followed up? It is advisable, therefore, to record why it is important that specific e-mails are monitored and how this will be achieved, to ensure that this information is available in the event of any future dispute.

What if an employee is leaving the company?

If an employee is leaving the company, the same basic rules apply: a legitimate purpose, the necessary transparency and proportionality.

In a decision dated 29 September 2020, the Gegevensbeschermingsautoriteit (GBA - Data Protection Authority) issued additional guidelines that also affect you as an employer.

1. As an employer, you must immediately block the mailbox of an employee leaving your employment. If absolutely necessary, automatic replies can still be sent for a period of one month. In some cases, this can be extended to three months. The ex-employee must be notified of this extension.
2. Before they leave the company, you should give the employee the opportunity to sort through their e-mails and delete or forward any private e-mails to a personal e-mail address.
3. E-mails that are critical for the successful operation of your business are best recovered in the presence of the employee concerned.

Practical tips

• Draw up an unequivocal e-mail policy to ensure that your employees are aware of the rules that apply within the company. This is important in terms of the required transparency. These rules can also be incorporated in the employment terms and conditions. Directors or other independent employees must also receive any necessary information.
• Monitor e-mails with a sense of proportion. Do not check all of them, only those that are clearly work related.
• Ask your employees to keep private e-mails in a separate folder to prevent you from accidentally accessing them.
• Ensure that your employees always generate an out of office message when they are absent, stating who is responsible for urgent matters during their absence.

Monitoring the mailbox of an absent or former employee is not as simple as it seems. Implement unmistakable agreements within your organisation. Do you have further questions concerning the formulation of a sound e-mail policy? Our advisers would be happy to help, so please do not hesitate to contact HR Legal.