Dismissal for cause? Fear of disappearance of evidence? How can a former employee access his mailbox?

A dismissal for cause is a drastic event for any employee. In addition to the immediate termination of employment and loss of income, you often face serious allegations. But what if the evidence to refute those allegations is on your professional computer or in your employer's mailbox? The fear that your former employer will destroy this evidence is then real. A recent ruling by the Labor Court of Antwerp, Antwerp Division of Nov. 19, 2024 sheds light on a powerful legal tool in such situations: the unilateral petition procedure.

The facts: resignation and the fear of disappearing evidence

In the case before the labor court in Antwerp, an employee was dismissed for an urgent reason. The employee was convinced that his former employer's accusations were unjustified and that he could prove this through digital files. However, the crucial evidence was located in specific subfolders of his professional Microsoft outlook mailbox and on the laptop provided to him by the employer.

Since the employee logically no longer had access to his work mailbox after his resignation, he feared that the employer would delete this data, under the guise of privacy laws or otherwise (GDPR) requiring a deletion of personal data after leaving employment. To prevent this, the employee went to the president of the labor court through a procedure on unilateral petition. The goal? The appointment of a judicial officer, possibly assisted by an IT expert, to enter his employer's business premises and take a copy of the relevant files.

What is a proceeding on unilateral petition?

In our Belgian legal system, the right to adversarial proceedings is a cornerstone. This means that each party to a dispute must be given the opportunity to present its arguments and respond to the other party's arguments. Proceedings are therefore generally initiated "adversarially," usually through a summons.

Proceedings on unilateral petition are an important exception. As the word itself implies, the court is seized by one party, without prior notice to the opposing party. Because this is a drastic departure from the basic principle of adversarial proceedings, it can only be done in exceptional circumstances.

The key condition: utter necessity

The law, specifically article 584 of the Judicial Code, requires for unilateral proceedings not simply urgency, but "utter necessity." But what exactly does this mean?

Case law, including the judgment discussed here, interprets this concept strictly. Utter necessity exists when:

• Prior notice to the other party would render the requested action meaningless. The "surprise effect" is crucial.
• The situation is so urgent that even swift adversarial proceedings (such as summary proceedings with shortened time limits) would irrevocably prejudice the rights of the applicant party.

In essence, it must be shown that only a sudden and unexpected action can ensure its effectiveness.

Labor court decision

The president of the labor court in Antwerp ruled in this case that the condition of absolute necessity had been met. The reasoning was clear: if the employer had been informed of the claim via a subpoena, nothing would have prevented him from immediately deleting the crucial mailbox and the specific subfolders. Thus, the surprise effect was essential to secure the evidence.

The court based its decision on Articles 871 and 877 of the Judicial Code. Although the primary purpose of these articles is to call for documentary evidence in proceedings already underway, case law accepts that they can also be used, in conjunction with the interlocutory appeal procedure, as a preventive measure to avoid the loss of evidence even before proceedings on the merits are initiated.

Accordingly, the president granted the employee's request and authorized the following measures:

• The authorization for a judicial officer, accompanied by a self-selected IT expert (acting as the employee's technical advisor, not a court expert), to enter the ex-employer's business premises.
• Instructed to access the employee's professional mailbox and take a copy of well-defined and specific subfolders.
• Imposing a penalty payment to enforce the employer's cooperation, for example, in refusing access or not handing over passwords. The court did moderate the amount claimed to €5,000 per hour of delay or per established breach.

Importantly, the court found the request well-defined. It was not a "fishing expedition" into the employer's entire IT system, but a highly targeted search of specific, individualized files. A too vaguely worded request, such as the general seizure of laptops or hard drives, was rejected as disproportionate.

Practical lessons for employees and employers

This ruling offers important insights for both employees and employers facing dismissal for cause.

For the employee: Were you fired for cause and convinced that the proof of your innocence is on your former employer's network? Then don't wait. The fear that this evidence will disappear is a real reason to act quickly and decisively. Unilateral petition proceedings can be the crucial tool to secure your rights. Acting quickly is the message, because those who wait too long risk losing the urgency argument. It is essential to have the assistance of a specialized lawyer in this process. They can correctly assess the chances of success of such proceedings and formulate the petition in a legally conclusive manner.

For the employer: Are you facing an order on a unilateral petition and suddenly a bailiff is at your door? Stay calm and cooperate within the confines of the court order. Obstruction can lead to significant penalties. It is crucial to seek legal advice immediately. After all, such a decision can be challenged through third-party opposition proceedings. Moreover, this case law underlines the importance of a clear and correct IT policy within the company, including with regard to the management of mailboxes and data of outgoing employees.

Conclusion

The procedure on unilateral petition is an exceptional but powerful procedure that can provide a solution in situations where there is an acute danger of evidence disappearing. The Antwerp Labor Court, with its verdict of November 19, 2024, confirms that this procedure can be perfectly used by a dismissed employee who fears that his ex-employer will allow evidence of his innocence to disappear.

👉 Please also read our general post on the evidence seizure.