The Western High Court ruled in favour of a former executive officer, who had violated the provisions on mail secrecy by having read a crane driver's text messages on his work cell phone.

Previously, the Court of Aarhus found that the executive officer and a works manager had violated the Criminal Code's provisions on mail secrecy because they had read almost 1,000 text messages on the employee's work cell phone after a long-term conflict at Aarhus Havn.

The reading of the text messages resulted in the dismissal of three crane drivers. Subsequently, the parties concluded voluntary severance agreements (settlements), but together with 25 colleagues, the crane drivers still chose to report the harbour's management to the police claiming violation of the Criminal Code's provision on mail secrecy.  

The Court of Aarhus found that the reading of the text messages was contrary to the Criminal Code's rules on mail secrecy.

THE HIGH COURT FOUND IN FAVOUR OF THE EXECUTIVE OFFICER

A high court majority found that the crane drivers had forfeited their right to ask the prosecution service to press charges as 3F on behalf of the crane drivers had concluded voluntary severance agreements (settlements) with the management at Aarhus Havn.

The High Court attached importance to the fact that these severance agreements had been concluded "in full and final settlement of any questions between the parties", and that 3F at the time knew how the management had received the burdening text messages.

Finally, the High Court attached importance to the fact that at a meeting with Aarhus Havn, 3F had stated that it was of the opinion that it had not been legitimate to read the text messages. According to the High Court, the severance agreements were based on the clear condition that the crane drivers would not raise claims or bring charges against Aarhus Havn.

As this kind of criminal offence cannot be prosecuted by the prosecution service without a private person requesting this, the High Court found in favour of the former executive officer.

IMPORTANT HOW SEVERANCE AGREEMENTS ARE WORDED

It was decisive in relation to the result that it was provided in the severance agreement that it was concluded in full and final settlement of all claims between the parties, and that the parties had specifically discussed the legitimacy of the management's reading of the text messages.

As an employer, it is therefore important to remember to conclude severance agreements in full and final settlement of all claims between the parties. However, it is always an advantage if the agreement describes in detail which claims are settled in full (for instance claim for bonus or claim under the Anti-Discrimination Act or the Salaried Employees Act).  

Unfortunately, the High Court ruling does not conclusively answer whether it is legitimate to read employees' text messages. Taking the district court's assessment into consideration, on which the High Court does not take a stand, the employer should, however, be careful about reading employees' text messages.

contacts

Marianne Lage

Partner

Maria Schmiegelow

Attorney