Employee privacy and truth-telling within employment law: at odds?

Conditions to employee investigations by employer

When conducting an investigation, the employer must be mindful of the employee's privacy. Monitoring the employee is only allowed when it meets the conditions set forth in the General Data Protection Regulation (AVG) and the AVG Implementation Act (UAVG).(1)

For the conditions to apply, there is a distinction between an "ordinary" monitoring and a covert monitoring. Generally, the employer must have a legitimate reason/justified interest in using the monitoring device that outweighs the employee's privacy interest (the "proportionality requirement"). In addition, the monitoring must be necessary to achieve the objective. This means that there are no less far-reaching possibilities for the privacy of the employee to achieve the goal (the 'subsidiarity requirement').

The employer must inform the employee about what is permitted and prohibited, that it is possible for monitoring to take place, and in what way, for example through rules of conduct or a protocol. In addition, the employer must seek prior approval from the works council for the introduction of an employee monitoring scheme. If the employer proceeds with large-scale and/or systematic camera surveillance to combat theft or fraud, for example, the employer must also conduct a data protection impact assessment (DPIA). Finally, when deploying surveillance, it is important for the employer to take into account the employee's right to private communication.

The conduct of covert surveillance is subject to additional requirements compared to "ordinary" surveillance, namely that: (i) there must be a reasonable suspicion of a criminal offense; (ii) despite multiple efforts, the commission of this criminal offense could not be stopped; (iii) the covert monitoring is carried out only on an incidental basis; and (iv) a DPIA is carried out before the deployment of covert monitoring.(2)

In case the above conditions are not met, there is an unlawful invasion of the employee's privacy and therefore the evidence obtained through such investigation is unlawfully obtained.

Employee privacy vs. truth-telling

What happens when an employer brings in illegally obtained evidence? In civil proceedings, the basic principle is that the valuation of the evidence is left to the court.(3)As the Court of Appeal of 's-Hertogenbosch already ruled in its judgment of March 19, 2013, the concept of "unlawfully obtained evidence" is not regulated in civil law.(4) The free theory of evidence applies. When introducing evidence, two questions must therefore be answered: (i) whether the evidence was unlawfully obtained; and if so (ii) what is the consequence of this and in particular whether this should lead to the exclusion of the unlawfully obtained evidence.

It follows from established Supreme Court case law that the general interest in establishing the truth and the interest of the parties in making their contentions plausible - barring special circumstances - usually outweighs the interest in excluding evidence.(5) Keeping this principle in mind, the employer does have some latitude in conducting investigations.

Consequences of illegally obtained evidence

At the same time, it follows from employment law case law that there are indeed consequences for the employer for introducing illegally obtained evidence.

For example, the District Court of North Holland quite recently admitted into evidence the report of the investigative agency that had secretly monitored a sick employee for seven consecutive days.(6) The court ruled that mutual trust must exist within the employment relationship, which entails that "having an employee monitored by an investigative agency without his knowledge is only acceptable under very special circumstances, in which concrete serious suspicions have arisen against the employee with regard to serious violations."(7) The consequence was that the employee was subsequently awarded equitable compensation, in the calculation of which, among other things, the employer's breach of privacy was taken into account.

The Court of Appeal of Arnhem-Leeuwarden also ruled that for the use of excessive investigative methods, the employee had to be compensated by means of fair compensation.(8) In this case, the general manager was dismissed with immediate effect by the general meeting of shareholders because he was alleged to have regularly visited brothels during working hours, while his diary stated that he was on 'work premises' and he was alleged to have frequently driven private kilometers with the company car. These reasons followed from the investigation conducted into him, which consisted of observing him and having him followed by a detective agency, placing a tracking beacon in his car (in addition to an already installed track and trace system), having his phone and iPad handed over on a false pretext, and an intensive interrogation by detectives, of which an extensive report was also made. However, the summary dismissal did not stand and the report was excluded as evidence. Not because it qualified as illegally obtained evidence, but because there were additional circumstances. Moreover, the investigation had a price tag in the form of fair compensation.

Conclusion

For the time being, it is not entirely foreseeable how case law will develop and whether the increased attention to privacy protection since the entry into force of the AVG will lead to heavier consequences for the employer in the future. It does follow from the foregoing, however, that while the premise that finding the truth in employment law in principle takes precedence over the employee's right to privacy does offer some leeway in conducting investigations, at the same time this comes at a price. If the conditions included in the AVG and UAVG are not met, the employer risks consequences in the form of damages and filing a complaint with the Autoriteit Persoonsgegevens by the employee.

It is now important to carefully deploy means of control in the event of suspicion of unlawful conduct by the employee and to comply with the associated regulations, and to draw up in advance a protocol (agreed with the works council) concerning various means of control.