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11 May 2016
The Supreme Court decision of April 7 2016 (6775/2016) established that access to a personal email account and employee assessments is protected under the Privacy Law (675/1996) and that an employee has the right to access employee assessments and verify whether they have been conducted according to good-faith standards. The employer must be able to explain the objective parameters applied.
The case involved an employee who repeatedly asked her employer for access to her annual performance reviews because they contained negative assessments of the quality of her work, which had been made since she had been transferred to another department, while she had previously always received positive assessments.
In particular, the employee tried to obtain evidence of the reasoning and evaluation on which the negative assessments were based. The employer did not provide this information and the employee filed a request before the Data Protection Authority, which ordered the employer to provide the records requested to the employee; however, the employer did not comply with the order. As a result, the employee filed a request before a judicial court.
In the first and second instances, the trial courts declared that the filing was "unacceptable" because the employee had already filed the case before the Data Protection Authority. However, the Supreme Court noted that judicial proceedings were an alternative to the request before the Data Protection Authority only for appeals with the same aim. Instead, in this case the employee's right to access her records was protected under the working relationship itself. The employer's obligation in that regard comes from the duties of good faith and fair dealing standards under Articles 1175 and 1375 of the Civil Code and the Privacy Law (675/1996).
As regards the issue of annual professional assessment in particular, the court noted the following:
"Considering the protection of a worker's dignity, the employer may decide to verify compliance with the procedures applied in the formulation of the evaluation to the above parameters (good faith and fair dealing). The employer carries the burden of responsibility to provide reasons for its assessment in order to allow supervision by the courts. The judge not only has to verify the consistency of the judgment, but also the correctness of the method of forming the same. Therefore, both positive and negative data that is relevant for the assessment must be considered, with the exclusion of data that is extraneous to work activity."
Another interesting decision was issued by a trial court on first instance (Court of Verona, April 5 2016).
The decision confirmed that access to a corporate email account need not be provided to an employee seeking reinstatement, as a work email account can be used only during a working relationship (this includes managing directors) and is a benefit of the contract with the employer rather than property of the employee.
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