The email provided for an employee's use is a work tool. The employer can stipulate that work email is to be used solely for handling work matters. Despite this, work email is protected by the same constitutional safeguards as a letter. The employer does not have the right to inspect the content of an employee's work email without a specific reason. The privacy protection at work defines the specific grounds on which an employer has the right to examine an employee's work email in the employee's absence.
The Act on the Protection of Privacy in Working Life lays down the specific grounds on which an employer may search for and open messages belonging to them in their work email. Furthermore, a prerequisite for opening and searching messages is that the employer has first fulfilled certain duty of care obligations defined in the Act on the Protection of Privacy in Working Life.
Duty of care
If an employee is absent or permanently prevented from coming to work, the employer must offer the employee one or more of the following options before accessing or opening messages sent to or from the employee's work email:
Option 1
The employee can use the automatic reply function (autoreply) to send a message to the sender, informing them of their absence, its duration, and also providing information about the person who will be handling the tasks of the absent employee.Out of the office / Absence notification).
Option 2
The employee can forward messages to another person approved by the employer for this role or to another address in their own use that has been approved by the employer.
Option 3
An employee can consent to someone else receiving messages sent to the employee during their absence, in order to ascertain whether the employee has been sent a message clearly intended for the employer for the performance of work duties, and of which the employer necessarily needs to be informed for the proper conduct of its operations or the arrangement of work duties.
The duty of care has been fulfilled when the employer has made one of the above options available to the employee. Retrieving and opening messages does not require the employee to have taken up one of the options. The employee may also be offered several of the above options.
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Retrieving messages belonging to the employer
After fulfilling the duties of care described above, the employer has the right to access messages belonging to the employer from the employee's work email when the employee is temporarily unable to perform their duties and the employer cannot ascertain the content of the email messages through those duties of care. Such situations include, for example, sick leave or annual leave.
Retrieval of email messages is performed by a person using the system administrator's privileges.
Retrieving email messages means that the employer has the right to determine, based on information concerning the sender, recipient, or subject of the message, whether a message was sent to the employee during their absence, or whether the employee sent or received messages belonging to the employer immediately before their absence, which the employer needs to know to conclude negotiations related to their operations, to serve customers, or to otherwise secure their operations. In addition, the following conditions must be met:
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- The employee carries out tasks independently on behalf of the employer, and the employer does not have a system with which to record or otherwise ascertain the matters handled by the employee and their processing stages.
- It is evident, due to the employee's duties and pending matters, that messages belonging to the employer have been sent or received.
- If an employee is temporarily unable to perform their duties and cannot make employer-related communications available to the employer, despite the employer having fulfilled their obligations under Section 18, the employee may be removed from the employer's engagement.
- The employee's consent cannot be obtained within a reasonable time and the matter cannot be delayed.
Permanently blocked and dead emails
If an employee has died or is permanently unable to perform their duties and their consent cannot be obtained, the employer has the right to ascertain messages belonging to the employer based on information concerning the sender or recipient of the message or the message header, unless it is otherwise impossible to ascertain the matters handled by the employee and to secure the employer’s operations.
In this situation too, it is required that the employee has carried out their duties independently on behalf of the employer and that the employer does not have a system by which the matters handled by the employee and their processing stages are recorded or otherwise ascertained. In addition, it is required that due to the employee's duties and pending matters, it is evident that messages belonging to the employer have been sent or received.
A report must be drawn up regarding the retrieval of work emails.
If searching for work email messages does not result in opening the email messages, a report must be drawn up about the search, which shall be signed by the individuals involved in searching for the message. The report must indicate why the message was searched for, the time of the search, and the persons who carried it out. The report must also be submitted to the employee without delay. A report does not, of course, need to be submitted if the employee is deceased or permanently incapacitated.
Sender or recipient details or header information of work emails must not be processed more broadly than is necessary for the purpose of retrieving the message, and individuals involved in retrieving emails must not disclose such information to a third party during or after their employment.
Opening emails belonging to the employer
If an email message, after being retrieved, clearly belongs to the employer, the employer has the right to open the email message themselves under certain conditions. Whether the message belongs to the employer is assessed based on information concerning the sender, recipient, or subject line of the email message. An email message can be either a message sent to the employee or a message sent by the employee. Opening an email message for work also requires that it is necessary for the employer to obtain information about the content of the message in order to conclude negotiations related to their operations, to serve customers, or to secure their operations, and that the sender or recipient of the message cannot be contacted to clarify the content of the message or to forward it to an address specified by the employer. When these conditions are met, the work email message can be opened by a person with system administrator privileges, in the presence of another person.
A statement must be drawn up and signed by the individuals who participated in the opening, indicating which message was opened, why it was opened, the time of opening, who performed the opening, and to whom information about the content of the opened message was provided. The statement must be delivered to the employee without undue delay, unless the employee is deceased or permanently incapacitated. The opened message must be retained, and its content and sender information may not be processed more broadly than necessary for the purpose of opening the message, and individuals processing the information may not disclose the message's content to a third party during or after their employment.
Employee consent and opening emails
If a member of staff has redirected their messages to another person during their absence (option 2) or if a member of staff has given their consent for another person to receive messages sent to them during their absence (option 3), these individuals may retrieve and open work-related emails received in their work email by following the procedure described above.
However, if the employee has given separate written consent allowing these individuals to read the employee's messages and also to perform work tasks intended for email messages without following the procedures required by law, these individuals may access and open the absent employee's work emails, including messages belonging to the employer, without adhering to the relatively complex procedure stipulated by law. However, such separate consent from the employee can be revoked at any time.
Co-operation on the use of e-mail & agreement on its usage
In companies with over 30 employees, the principles for using email and computer networks must be addressed in co-operation negotiations. In workplaces with fewer than 30 employees, employees must be given an opportunity to be heard on the principles for using email and computer networks.
The obligation to negotiate and consult concerns the general principles of email use, meaning, for example, whether work email may be used for private matters. Individual cases do not require negotiation or consultation with employees. Negotiations and consultation must be carried out before the principles are introduced. Although the employer has an obligation to negotiate with or consult employees, the employer makes the final decision on matters concerning email, unless an agreement is reached with the employees.
It is recommended that principles for email use are agreed upon in writing with employees, even in companies with fewer than 30 employees. In such cases, it is advisable to agree on how absences will be reported and what method will be used during an employee's absence. Furthermore, it is recommended to address duty of care obligations and separate consents promptly at the commencement of the employment relationship.
In practice, the biggest problems with email use arise from agreements not being made in advance.
Finally
It is always advisable to agree on the rules for using work emails in advance at the workplace. When employment ends, it is recommended that arrangements are also made for closing the employee's work email and for a potential out-of-office message. The established procedures can be deviated from if the parties agree on this separately.
We have created a sample form that you can use for your company's needs. Remember to fill in all sections carefully.
Download the Word document form from here: Consent to process emails
Article drafted by the Advocate Tuula Rainto, Amos Law Firm. You can always call him free of charge on 010 299 5090. You can consult our price list Here. Article updated 4 March 2024.
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[avatar user=”amoslaki” size=”352″ align=”left” link=”https://amoslaki.fi/ajanvarauskalenteri/” target=”_blank” ]Attorney Tuula Rainto, Amos Attorneys at Law. You can always call her free of charge, tel.010 299 5090[/avatar]