Gerechtshof Den Haag, 23 July 2024, ECLI:NL:GHDHA:2024:1167
This case concerns a valid summary dismissal after a sick employee forwarded emails containing confidential business information to his private email address. He was not transparent about this and refused to delete the emails when asked to.
Facts
On 1 March 2023, the employee joined Telepact as Director of Operations. He reported sick on 6 July 2023 due to stress-related complaints. A few hours after reporting sick, he forwarded around fifty emails from his work address to his private email address, including several with attachments containing confidential business information.
After discovering this, the employer suspended him by letter on 7 July 2023. The letter invited him to explain his conduct at the office a week later, and warned that summary dismissal would follow if he failed to respond to the invitation.
The employee was also ordered to immediately delete the forwarded emails and files, and to confirm in writing within a few days that he had done so and had not shared or forwarded them to any other private address.
The employee did not respond to these requests. As a result, he was summarily dismissed on 11 July 2023. Before the subdistrict court, he lost his case and was ordered to pay €17,767 in damages to the employer. He appealed against that judgment.
Ruling of the Court of Appeal
On appeal, the employee argued that the forwarded documents were largely not strategic in nature and that competitors could gain no advantage from them. The Court of Appeal disagreed, holding that the employee should have deleted the emails immediately upon receiving the employer’s letter. Moreover, at the time the emails were forwarded, the relationship between the parties was such that the employee could anticipate his account being blocked, since the employer was already critical of his performance.
The Court of Appeal ruled in favour of the employer. Forwarding confidential business information outside the organisation’s control is seriously culpable conduct. The employee’s illness offered no justification for it. It was up to the employee to prove why it was impossible for him to delete the files, which he failed to do. Because the confidential emails ended up outside the organisation’s control, the employer lost its grip on the information. The mere refusal to delete the forwarded information was, in the Court’s view, sufficient grounds for summary dismissal on its own.
Conclusion
Failing to delete forwarded confidential business information on request justifies summary dismissal, even where the employee is on sick leave.
This judgment highlights the importance of confidentiality within organisations. Do you suspect that your employee is disclosing or has shared confidential business information without authorisation? Our employment lawyers are happy to think along with you.
Click here for the full ruling (in Dutch).
