As an employer, how do you take action against inappropriate electronic messages in the workplace?

Whether it is a text message, an e-mail or a direct message on Instagram, privacy and the right to confidential communication are fundamental human rights guaranteed by Article 8 of the European Convention on Human Rights (ECHR).

"This principle was implemented in Belgian criminal law under Article 314bis §1 and 2 Sw, which sanctions the violation of the right to confidential communication with a prison sentence of up to three years,"Ronald explains. "In essence, it comes down to this: a person who takes cognisance of communications not addressed to him or her commits a violation of the right to confidentiality. This principle is also guaranteed and sanctioned by the Act of 13 June 2005 on electronic communications, specifically in Article 124."

"That collective agreement has a very broad scope,"Ronald argues. "Emails, instant messages, conversations via social media ... All those forms of electronic communication an employer can monitor. The motivation behind it is simple: a business manager has an interest in knowing when racist, discriminatory or inappropriate messages are circulating in the workplace. Such chats or emails can harm a company commercially, technically and financially. CLA no. 81 allows employers to take note of these mutual communications and to take appropriate action against them."

While CBA No 81 gives employers the green light to monitor and possibly sanction electronic communications, it also subjects the monitoring to certain conditions. One of the requirements is that a collective information procedure is organised within the company. 

"This can be via the works council, the committee for prevention and protection at work, the trade union delegation or even directly to the individual employees," says Ronald. "This information procedure must be installed in consultation. What is essential is that the employer's monitoring option is attributed to a clearly justified purpose, such as the prevention of unauthorised, racist or violence-inducing messages in the workplace."

Another essential point is that a conversation takes place with the employee in question. "When an employer notices through the monitoring system that one of his or her employees is distributing inappropriate e-mails or chats, it is important to invite the employee for a conversation. Only then can the content of the electronic communication be used to take appropriate action, such as a reprimand, suspension or individual dismissal for urgent reasons."

Good agreements create clear expectations, especially in the workplace. It is therefore essential as an employer to develop a clear policy around electronic communication in the bosom of the company. 

"Cao no. 81 provides the perfect guideline for this," says Ronald. "Failure to do so has important consequences at the evidence level. Suppose an employer happens to learn of offensive online posts and wants to fire an employee on that basis. Then he or she runs the risk of having the evidence rejected in court if no company policy was put in place. The entire evidence of a dismissal for urgent reasons then falls apart, due to the mere fact that collective agreement No 81 was not complied with. A clear company policy is therefore essential to avoid later discussions."

Within Novius, Ronald and his fellow lawyers guide entrepreneurs at every stage of their business development. Proactive advice is central to this, for example when working out the correct framework for electronic communication in the workplace. 

"We advise entrepreneurs, point out potential risks and set out the outlines of a company policy on electronic communication. This clearly recognises the privacy of employees, but also stipulates that the employer can act in clearly defined cases, such as when messages circulate that hurt, call for violence or cause damage to the company. That policy is then integrated into the employment regulations, referred to via a clause in the individual employment contract. All so that you as an employer can take targeted action and use the messages as evidence with a view to appropriate sanctions."