In view of the widespread use of IT tools for work, the question frequently arises as to whether an employer can open a file on an employee’s work computer, and dismiss them employee upon discovering its contents. The Luxembourg Court of Appeal recently considered such a case, and restated the rules applicable in this area. 

An employee was dismissed with immediate effect both for unjustified absence from work and for saving personal photos, including pornographic ones, on the computer made available to her for the performance of her duties. The employee contested the validity of her dismissal. 

At first instance, the Employment Tribunal ruled that the dismissal was valid. In particular, the judges considered ‘that the presence of sexual images on a work computer made available to the employee by her employer on the employer’s premises is inappropriate, and that these images are, unquestionably, likely to offend the sensibilities of a person who discovered them by chance, and to cause discomfort, making it immediately and irremediably impossible to continue the employment relationship’. The Tribunal noted that there was no evidence showing that the photos were saved on an external server, or that access to them was password-protected. 

The employee appealed against the ruling, claiming that ‘the discovery of photos of any kind in a clearly private file does not constitute grounds for dismissal’. The appeal was rejected. 

In rejecting the employee’s appeal, the Court of Appeal considered, first, the protections afforded by the Labour Code in the event of an employee’s absence due to illness, and we do not analyse this part of the decision here. The Court then considered the conditions for a valid dismissal with immediate effect. On this point, the Court recalled the need for the employer to precisely state the wrongful acts of which the employee is accused, going on to rule that saving pornographic photos on a computer provided by an employer is sufficiently serious to justify dismissal. 

The Court of Appeal reiterated how important it is that employers state grounds for dismissal with the utmost precision:  

‘Stating the grounds for dismissal must enable the dismissed employee to know exactly the fact(s) of which he or she is accused and to assess in full knowledge of those facts whether it is appropriate to contest the dismissal, both to prevent the employer from invoking different grounds a posteriori and to enable the courts to assess the seriousness of the allegations and to verify that the grievances invoked before them correspond with the stated grounds.’ 

At first instance, the Tribunal had found that in the case at hand, ‘the grounds for dismissal were presented in the letter of dismissal in a clear and chronological manner, dates and places are given and the people who intervened in the context of the facts are identified’. 

The Court of Appeal ruled that the letter of dismissal was sufficiently precise in stating the reasons for dismissal, since it specified that: 

• the employer had required photos saved on the employee’s work computer; 
• in the employee’s absence, a member of staff had searched for these photos on her computer, opening a files whose titles (‘photos’ and ‘fotos’’) in no way revealed the personal nature of the pictures stored in them; and 
• the employee had discovered a panoply of the employee’s private photos, including fifteen of a sexual character. 

The Court of Appeal ruled that the presence of pornographic photos on a computer made available to the employee by the employer for professional purposes, and in a file not specifically identified as private by the employee, is unquestionably likely to offend the sensibilities of any person and shows the use of work equipment for private purposes. These facts are sufficiently serious to permanently undermine the employer’s trust. 

The Court of Appeal also noted that this was all the more true in view of the employer’s corporate purpose: to help victims of violent crime, including sexual offences. 

The Court of Appeal’s ruling reminds us of several important points: 

• An employer must state an employee’s wrongful acts with the utmost precision, and describe the circumstances that give rise to their gravity, if using these facts to justify a dismissal. 
• The presence of pornographic photos on a computer made available to the employee by the employer can be sufficiently serious to break the employer’s trust and thus justify dismissal. 
• An employer may access an absent employee’s work computer and search for documents in folders, where the titles of those folders do not indicate that the contents are private in nature. 

The solution to this dispute would have been different if the photos in question had been placed in a folder labelled ‘personal’, ‘confidential’ or ‘private’.