No dismissal for employee who e-mails confidential information to himself

A Dutch employee learns that his employer wishes to terminate his employment contract by means of an amicable termination. In anticipation of this, the employee is exempted from work. Before the employee goes home, he mails four working files to his own business e-mail address. The files include summaries of all of the employee’s account information, licenses and contact persons. Employer then dismisses employee summarily. Is this justified? Dutch employment lawyer Sander Schouten discusses the ruling.

Did the employee’s intend to compete with the employer?

According to Dutch law, either of the parties may terminate the employment contract immediately on pressing grounds. The urgent reason claimed by the employer in this case was that the employee was guilty of sending himself highly confidential documents containing essential and extremely sensitive competitor information. According to the employer, the employee apparently had the intention of using the information to compete illegally with the employer and to cause damage to its flow of business.

Employee offered immediate resignation?

The employee’s Dutch lawyer stated at the outset that the employer had not granted the dismissal without delay. According to the employee, the employer already knew after the first discussion that the employee had mailed the files to himself. Nonetheless, the employee was dismissed only after three weeks. However, the employer’s lawyer states that they originally thought that it only concerned a single document. Further investigation revealed that there were more documents and only then did the substance of the documents become clear.

Dutch court: employer must act diligently

The Dutch court considers that, if an employer suspects that pressing grounds for the dismissal of an employee have arisen, the employer may (or even must) first investigate the accuracy of this suspicion before proceeding to summary dismissal. The speed with which this investigation must take place depends on the circumstances in the case: the nature and scale of the investigation, the carefulness required and any possible need to obtain legal counsel and collect evidentiary material. The court considers the period of time between the first discovery of the employee’s e-mail and the ultimate dismissal to be justified.

Summary dismissal: ultimum remedium

And now for the $64,000 question: did e-mailing confidential information constitute sufficient grounds for summary dismissal? The Dutch District Court judge first notes that summary dismissal is an “ultimum remedium”, so the presumption that it is justified may not be made too quickly. In general, suspicions and/or hypotheses that are not firmly substantiated by facts may not result in summary dismissal.

Mailing confidential information forbidden?

In this case, there were no rules forbidding the employee to send files to his business e-mail address. This establishes the fact that simply sending the files did not constitute infraction of a rule. According to the employer, the wrongful act was to be found in the purpose that the employer presumed: namely, the employee’s misusing that information.

Employee’s evil intentions not demonstrated

According to the Dutch court, the employee was not shown to have distributed the files among third parties – at least, that the files were not actually used to the disadvantage of the employer, or that he had the intention of doing so. So the intention on the part of the employee to inflict damage was not demonstrated. The employer’s suspicion that the employee intended to compete illegally remains unsubstantiated. The court held that there were no urgent grounds justifying summary dismissal. Therefore, the summary dismissal is not legally valid. Otherwise, the courts did indeed hold that the relationship between parties was disturbed to such a degree that the subsidiary request for dissolution was granted nonetheless.