Private emails during working hours justify dismissal

In its judgement of 31 May 2010, Case No. 12 Sa 875/09, the Lower Saxony Regional Labour Court ruled that excessive use of the private e-mail function at the workplace is an important reason for extraordinary dismissal. In the case to be decided, an employee used his internet connection at work extensively to send private e-mails. The defendant had a service instruction on the recording of working time. Among other things, it stipulated that interrupting working time to deal with private matters was prohibited. The defendant in the case had taken note of these instructions. There was no express written regulation on the business/private use of the e-mail functions.

The Regional Labour Court (Landesarbeitsgericht) now ruled that excessive private use of the e-mail function during working hours constitutes good cause for extraordinary dismissal. The Federal Labour Court (Bundesarbeitsgericht, BAG) already ruled in 2005 that an employee who uses the internet privately during working hours is in principle in breach of his or her duty to work. The private use of the internet must not significantly impair the performance of the work owed under the employment contract. The breach of duty is all the more serious the more the employee neglects his or her duty to work in terms of time when using the internet privately. Therefore, it must be clear to every employee that with excessive use of the internet during working hours, he or she significantly violates his or her primary and secondary obligations under the employment contract.

Therefore, no warning is required in such cases. The requirement of a relevant warning prior to the issuance of a notice of termination is primarily intended to counter the employee's objection that he could not have recognised the breach of duty of his conduct or could not have expected that the employer would consider his conduct in breach of the contract to be so serious. In the case of excessive private use of the internet connection at work, this justifies extraordinary dismissal without prior warning. In the case at hand, the dismissed employee used the internet connection during working hours to such an extent that he spent so much time maintaining his private contacts during working hours that he was left with no room to perform his official duties. Since the plaintiff had such excessive private e-mail traffic during working hours on individual days that he no longer had any time to fulfil his duties under his employment contract, he violated his work duties to such an extent and intensity in the opinion of the Regional Labour Court that there was no need for a prior warning here.

Judgment of the Regional Labour Court of Lower Saxony of 31 May 2010, Case No. 12 Sa 875/09


Goldberg Attorneys at Law

Michael Ullrich, Attorney at Law, L.L.M. (Information Law)

Specialist lawyer for information technology (IT law)