Have it out on email, the firm can't touch you (in Turkey, don't try it anywhere else).
Turkey's highest court has ruled that the Turkish branch of the Baker McKenzie network violated two of its lawyers' right to privacy when it looked through their work emails to justify firing them.
A male lawyer, ‘EU' worked under a female partner, 'AY', along with three other lawyers in a five person team at Esin Attorney Partnership ('EAP'), the Turkish member of Bakers' Swiss Verein.
After a quarrel in 2014, the other three lawyers complained to management about EU and AY. They claimed that EU was being rude and creating an unpleasant working environment, but that AY's relationship with EU had led AY, who was the team manager, to side with him in every incident.
A search of the pair’s work emails brought up messages from EU to AY which included, “I am going to talk to your mother, do not worry, I will speak about your disgrace", and, “Get out of my life and do not come back. I am sick of you".
EU also criticised another team member in his emails to AY, telling her, “That man is so incapable he cannot get into my documents, he brings in his girlfriend to do it, the utter impertinence and impudence”.
AY's replies to EU included, “I am not in your life, it has been a long time since I left your life, and I have no intention of coming back, you cannot force me to talk with [another team member] by harassing me like this”, and “Do not push my buttons like this, learn how to control yourself”.
She also told him, “I am tired of your emails, you get on my nerves a lot. I cannot work. No one has the right to display this kind of an attitude and torture someone...”
Following the firm's investigation, the pair were sacked in 2016 on the basis of the email content.
EU was accused in his termination notice of subjecting AY to "psychological harassment" intended to make her side with him, and of adopting a "seriously quarrelsome attitude by continuously entering into unnecessary disagreements".
Both EU and AY, who now work together in their own firm, sued their co-employers (EAP, Baker McKenzie Consultancy Services and Baker McKenzie Office Management) for unfair dismissal.
The Turkish court of first instance dismissed EU's claim for unfair dismissal. So did the higher court.
But the Constitutional Court ruled that the firm was wrong to look at its staff's work emails.
EAP and Bakers had argued that since the emails were sent from a corporate account, they could be inspected. Their view reflected the position which many lawyers assume to be the case at their firms, and who as a result use personal email accounts for personal matters (unless they forget themselves, in which case years later a trainee will stumble on a love affair accidentally archived in a corner of filesite).
But the court stated that while employers may have a legitimate interest in reviewing corporate email accounts, unrestricted reviews of employees’ emails were disproportionate unless the employer provided a clear and complete notice to its employees in advance of them using their work accounts.
Even warning notices may not be sufficient to justify employers snooping on their employees' work emails, said the court. The employer's interest had to be balanced against the employees' fundamental right to privacy and a private life, said the court, even if their personal life intruded into the workplace.
Baker McKenzie's Istanbul office told RollOnFriday the ruling was handed down "without hearing our position" and had "already been criticised heavily by academic experts as wrong".
It said its email review was carried out in full compliance with the law, which was that business emails were the property of the employer "and they can be reviewed without the consent of the employee". It was an approach which "still seems to be one of the dominant views in the market and in the world", said the firm.
AY told RollOnFriday that the “entire matter relates to me, not [EU]”, and arose because she had complained about a senior partner in the Istanbul office. AY said he was unhappy that she had come to the defence of another female employee who had sued the firm over his behaviour, as reported by RollOnFriday in 2018.
The initial quarrel “was a very simple argument that took 10-15 minutes and stopped”, said AY, and so the senior partner ”ordered the IT manager to crack our passwords”, and “he and others read all our private emails"
"Thousands of them have been searched by using keywords. During our law suit process, they made all our private correspondences public in the court files with 20-25 font size characters”, she said.
“In the end we both won our case at the top level”, said AY, and the court “provided a landmark decision confirming that our fundamental rights are breached”.
The couple's claims for unfair dismissal will now be reheard, without reference to their correspondence.
Baker McKenzie's Istanbul office emphasised that the emails were all sent from the lawyers' work accounts, and that "this is not a 15 minute discussion but a series of threats and misconduct that went on for months".
"We hope to prevail once again given the entirely inappropriate conduct of the individuals concerned", it said.