What is the Criteria for Validity of Disciplinary Dismissal Based on Personal Emails at Work?

It is not permissible to dismiss an employee for disciplinary reasons without cause. The basic principle of the law is that appropriate disciplinary action can be taken if there is a reason for discipline, based on its maliciousness, etc.

So, to what extent is disciplinary dismissal based on personal emails during work hours recognized? To conclude, this is not simply a matter of the number of emails, but a judgment based on a comprehensive consideration of various factors. Also, for example,

• If there are work rules prohibiting personal emails and if these are violated in terms of wording, the dismissal is valid
• If such work rules do not exist, the dismissal is invalid

This is not the only judgment. I will introduce a case where the validity of disciplinary dismissal based on an employee’s personal email was questioned in past court precedents.

Is Monitoring Personal Emails a Violation of Privacy?

First and foremost, when considering this issue, we must address the question of whether it is legally permissible for an employer to monitor the personal emails of their employees. Excessive monitoring can become a problem in relation to an employee’s privacy. We provide a detailed discussion on this matter in a separate article.

https://monolith.law/corporate/monitoring-survey-of-inter-office-mail-and-invasion-of-privacy[ja]

Case of Approximately 1600 Exchanges Over 5 Years

Below, we introduce a court case where the validity of a disciplinary dismissal due to personal emails was in question.

First, there was a case where a vocational school teacher was disciplined and dismissed for registering on a so-called dating site using a workplace computer during work hours and continuing a large amount of email exchanges. The validity of this disciplinary dismissal became an issue.

The defendant, using a business computer and email address provided by the plaintiff school, registered on a dating site and exchanged a large number of emails with women he met on the site (from around September 1998 (Heisei 10) to around September 2003 (Heisei 15), the records of sent and received emails were about 800 each, and about half of them were sent and received during work hours). He was disciplined and dismissed for this reason. He claimed that the disciplinary dismissal was an abuse of the right to dismiss and was invalid, and demanded the confirmation of his employment contract status, unpaid wages, and unpaid bonuses from the school.

In the original trial, the court acknowledged that the defendant’s series of actions not only violated the obligation to concentrate on his duties and maintain workplace discipline, but also raised doubts about his suitability as a teacher and affected the school’s reputation and credit. However, the court also stated that he did not neglect his teaching duties and did not cause significant disruption to the school’s operations. Therefore, the court ruled that the disciplinary dismissal was too harsh, was an abuse of the right to dismiss, and was invalid, and granted the claim for unpaid wages and bonuses.

In response, the school appealed, and the court stated in the appeal trial,

The defendant was sending emails seeking an SM partner using the email address that he could have known belonged to the plaintiff school. Such emails could damage the school’s reputation and credit just by being viewable by third parties. This is irrelevant to whether the defendant actually dated through these emails. Despite the fact that the defendant was obligated to concentrate on his duties at the plaintiff school during work hours based on his employment contract with the plaintiff, the defendant had been sending and receiving a large number of personal emails during work hours over a long period of time. If he had devoted the time and effort spent on these emails to his original duties, he could have achieved more results. It is not possible to say that he did not neglect his duties while neglecting his obligation to concentrate on his duties to such an extent.

Fukuoka High Court Judgment, September 14, 2005

The court ruled that the disciplinary dismissal was appropriate for violating the obligation to concentrate on duties.

Although the school did not have a usage policy for personal computers and other staff also used them for personal purposes to some extent, the judgment states, “Whether the school had a usage policy for personal computers or not cannot change the degree of its betrayal, and there is no evidence to suggest that there were any staff members at the plaintiff school who sent and received personal emails as much as the defendant.”

Just because there are no usage regulations, it does not mean that you can abuse your workplace computer and exchange a large amount of personal emails. Especially in this case, the content of the emails could damage the reputation of the workplace, and it can be said that strict measures were inevitable.

https://monolith.law/reputation/defamation-and-decline-in-social-reputation[ja]

https://monolith.law/reputation/honor-infringement-and-intangible-damage-to-company[ja]

Case of Approximately 1700 Exchanges Over 6 Months

There was a case where an employee who had exchanged 1700 private emails during working hours over a period of six months sued the company for invalidating the dismissal the company had imposed. The defendant company evaluated the plaintiff, who was working as a system engineer with section manager treatment at an information processing company, as lacking not only sufficient ability as a system engineer, management ability in projects, and sales ability, but also motivation for work, and clearly underperforming due to lack of ability. The company suggested the plaintiff to resign, and during this discussion, the issue of the plaintiff’s emails was raised.

The defendant company argued that despite having been reprimanded for being engrossed in chat on the computer during working hours, the plaintiff continued to send about 1700 private emails over six months using NTT Docomo’s IP Messenger. The contents of these emails varied widely, including invitations to go drinking, borderline sexual harassment towards women, and calls for farewell parties. The company claimed that such sending activities not only violated the plaintiff’s duty of devotion to work, but also interfered with the work of colleagues who received them, constituting a serious violation of work discipline and a significant violation of the duty of devotion to work.

In response, the court acknowledged the defendant company’s argument regarding the number and content of the emails, stating, “Engaging in private exchanges during working hours violates the service discipline and the duty of devotion to work. Moreover, the computer and other equipment used by the plaintiff at NTT Docomo were allowed to be used for business purposes only by the client. Therefore, it is clear that his actions involve serious issues.” The court recognized the violation of service discipline and the duty of devotion to work, but also stated,

“However, it is clear from experience that exchanging a certain amount of private conversation, etc., is beneficial for maintaining a good working environment. Considering that private use to a certain extent is usually tacitly permitted when using computers and other information devices, the private use by the plaintiff, in terms of its frequency and content, may slightly exceed the usual limit. On the other hand, if this was an extremely abnormal violation of the duty of devotion to work, there should have been reports from many of the recipient employees to the defendant’s managers, and the issue should have been immediately addressed, and some kind of warning or punishment should have been given to the plaintiff. However, the defendant pointed this out only after the case was brought to court without any problem.

Tokyo District Court, June 22, 2007 (2007)

The court took into consideration that the issue had not been raised until then, there was no evidence of disciplinary action for similar behavior, and there were no problems with clients or others in this case. The court granted the request for confirmation of status and ordered the payment of unpaid wages. From the above two examples, it can be said that private emails are not judged solely by their number.

Case of 32 Exchanges Over 13 Months

An employee who was dismissed for sending 2-3 personal emails per month during working hours sued the company for abuse of the right to dismiss, claiming it was a violation of the employment rules.

This company had employment rules such as:

• Not using the computer for non-business purposes within the company
• Not sending or receiving personal emails within the company
• Not connecting to the internet for non-business purposes within the company

Despite these rules, the plaintiff repeatedly sent and received numerous emails unrelated to work and defamatory of other employees during working hours. He was also found to have sent and received numerous personal emails with acquaintances, which was deemed a violation of the employment rules.

The court, while acknowledging that there were personal emails among the defendant’s emails during working hours, stated:

“It is common in society to have conversations unrelated to work during working hours, such as small talk, criticism of colleagues, gossip, and planning social gatherings. These conversations can contribute to the formation and maintenance of smooth working relationships, and it is not permissible to consider all of these actions as violations of the duty to devote oneself to work. The defendant’s employment rules prohibit the exchange of personal emails, primarily to prevent employees from neglecting their duties by exchanging personal emails during working hours. Therefore, the issue is whether the plaintiff’s exchange of personal emails exceeded the socially acceptable range and caused a disruption to his duties. Only if this is affirmed can a violation of the employment rules be questioned.” Judgment of September 18, 2007 (Heisei 19)

While making a judgment similar to previous court precedents, the court stated:

“The plaintiff sent 32 personal emails as evidence over approximately 13 months from April 5, 2004 (Heisei 16) to April 21, 2005 (Heisei 17), which is only 2 to 3 emails per month. The content of these emails includes unavoidable ones such as responding to small talk from business partners, answering job consultation from juniors at his alma mater, and planning social gatherings with employees. There are also those that cannot be easily denied their necessity. There is no evidence that the creation of these emails took a long time and caused specific disruptions to work.” Same as above

The court ruled that “it is hard to recognize that the personal emails sent by the plaintiff exceeded the socially acceptable range, and it is impossible to question them as a violation of the employment rules,” and invalidated the dismissal. Regardless of the employment rules, it is unreasonable to question this number of emails.

Case of 28 Exchanges Over 7 Months

There was a case where X1 and X2, employees of the Japanese Health Insurance Association, claimed that the demotion and pay cut imposed on X1 by Y, and the pay cut imposed on X2, were invalid due to non-existence or abuse of disciplinary power. They sought confirmation of the invalidity of each punishment, payment of the deducted wages, confirmation of X1’s position as section chief before the punishment, and payment of the difference in allowances before and after the punishment.

The actions that led to the disciplinary action against X1 were as follows:

• Knowing that a staff member was sending personal emails during work hours, X1 did not report this to his superior and did not caution the staff member.
• X1 also exchanged personal emails with the staff member. The actions that led to the disciplinary action against X2 were installing Yahoo Messenger on a computer without permission, and encouraging other employees to participate in conversations using it.
• Using chat to make personal contact and conversations with external parties during work hours.
• Using a computer to send personal emails between employees during work hours.

The main point of contention was whether these actions violated the union’s employee service regulations, which state “Employees must not waste or use goods for personal use” and “Employees must not leave their designated workplace during work hours without good reason”, and even if they did violate these regulations, whether the punishment constituted an abuse of disciplinary power.

Regarding the punishment for private use of computers (first punishment), it was clear that the private email exchanges conducted by X violated the regulations (prohibition of private use of goods) because they used the union’s property, the computer, for personal use. However, the court examined whether this constituted an abuse of disciplinary power, and indicated that the pay cut imposed on X was invalid as an abuse of disciplinary power because it was too severe in light of social norms and lacked fairness, considering that the frequency of X’s private email exchanges was not high, there were no rules on the handling of business computers in the union, there were no warnings or cautions about private use of computers by each employee, there were doubts about the fairness of the investigation method of communication records, and the pay cut violated Article 91 of the Japanese Labor Standards Act (“The amount of a pay cut must not exceed half of the average daily wage”). (Sapporo District Court, May 26, 2005 (2005年5月26日)).

Regarding the frequency, for example, in the case of X1, it was only 28 times in about 7 months. The union argued that there were many instances of private use because the plaintiffs had deleted the communication records, but the court admonished this, stating, “Disciplinary action is a form of punishment, so punishment based on mere speculation and conjecture without evidence should not be allowed.”

Summary

At the beginning of this article, we asked how many personal emails would be considered problematic. However, the issue is not just the number of personal emails. The conditions under which, the environment in which, the frequency at which, and the type of personal emails being exchanged are all questioned. If personal emails become a problem in the workplace or similar settings, it would be advisable to consult with an experienced attorney before the situation escalates.