The run-up to the end of employment can be a complicated period for both employers and employees. Apart from the various matters that need to be arranged, such as transferring responsibilities and dealing with financial arrangements, the question can arise as to whether the employee retains access to business e-mail accounts for the remainder of his or her employment. In particular, I often hear employer clients from the UK or USA say that – after indicating to the employee that they no longer wish to continue working with him or her – they send the employee in question on garden leave and immediately deny (block) access to electronic systems. This seems to be a matter of course in those countries. In the Netherlands, however, it is not.
In a recent ruling (Amsterdam District Court 21 June 2023, ECLI:NL:RBAMS:2023:3835), the subdistrict court ruled that an employer was obliged to make available the contents of the business e-mail accounts of a dismissed director and former founder.
After termination of employment, the employee requested access to her business e-mail accounts. She stressed the importance of both private information and business contacts she had built up over time. However, the employer unilaterally blocked access to the e-mail accounts. According to the subdistrict court, however, no reasoning circumstances were put forward to justify the conclusion that the employee had used the accounts improperly or unlawfully. According to the subdistrict court, it is hard to see why the mere termination of the employment should mean that the employee no longer has access to information from the past.
The employee explained why she has an interest in accessing the information on her e-mail accounts. In addition to private information, the accounts contain valuable business contacts, whose contact details and information are still of interest to her. The court recognised these interests and ruled that the employee was entitled to the past information.
An important aspect of the case is the confidentiality clause included in the employment contract. This clause obliges the employee not to misuse or disclose confidential information. The court held that this clause provides the employer with sufficiently effective tools to act against unwanted use of the e-mail accounts by the employee.
This court ruling shows once again that employers cannot simply deny access to email accounts to an employee who is about to leave employment. Even if the employee is already out of service, they can apparently – with the right arguments – still claim access to past emails. It is good to handle this carefully.