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31 March 2020 / article

Violation of privacy an important factor in granting fair compensation

An employer who instantly dismisses an employee on the basis of (private) information on a found USB stick of the employee, seriously violates her privacy.

Such behavior can also contribute to the amount of fair compensation, such can be derived from the judgment of the Tilburg Subdistrict Court of 11 October 2018 (Dutch only), which was only recently published. 

Judgement Sub district Court

After more than 20 years of employment, the employer has instantly dismissed the employee for various reasons. The employee would have performed ancillary activities during working hours and would have written application letters to other employers. Furthermore, the employee would have forged the director's signature on documents and contracts, would have taken holidays without consultation and would have used inappropriate language in the workplace.

For justifying the immediate dismissal, the employer used a found USB stick of the employee. This USB stick contained all kinds of information about the employee, such as information about her social activities and application letters, but also very personal information, including a divorce agreement and information about her visit to a psychologist.

The Sub district Court annulled the instant dismissal, but granted the conditional request for dissolution of the employment contract because of a disrupted employment relationship. In the opinion of the Sub district Court, this disruption was the result of serious culpable conduct of the employer. In this respect, the Sub district Court considered it important that the employer used a found USB stick of the employee on which all kinds of (sensitive) private information was stored to justify the immediate dismissal. According to the Sub district Court, the employer thereby seriously violated the employee's privacy. In its judgement, the Sub district Court also attributed weight to the fact that the employer had still not returned the USB stick to the employee.

The Sub district Court therefore concluded that, in addition to the transition allowance, the employee was entitled to a fair compensation of EUR 25,000. In determining the amount of the fair compensation, the Sub district Court took into account, among other things, that the employee did not yet have any other work and that the prospect of other work (with equal pay) was unfavorable in view of her age and unilateral employment history. The Sub district Court also took into account that the employer seriously violated the employee's privacy by opening (private) files on the employee's personal USB stick. 

Privacy in the workplace

Employees also have a certain amount of privacy in the workplace. For example, the employer does not have an unlimited right to monitor the use of office resources (such as e-mail and the Internet made available by the employer). This does not alter the fact that the employer may impose restrictions on and monitor the use of office equipment for private purposes. However, the employer cannot completely prohibit the use of employer resources for private purposes (ECHR 5 September 2017, JAR 2017/259 (Barbulescu)). It should be noted that the present case concerned a personal USB stick belonging to the employee and not a USB stick belonging to the employer, so that opening the files more easily led to a violation of the employee's privacy.

Controlling employees on the use of office equipment is permitted if the employer complies with the conditions of the General Data Protection Regulation (GDPR). Firstly, the employer must have a legitimate interest in monitoring the employee. This means that the employer must be able to invoke a (written or unwritten) rule of law or principle of law. Think, for example, of the importance of investigating unacceptable behaviour in working relationships and the importance of combating fraud.

Moreover, monitoring should not go beyond what is necessary to achieve the objective (proportionality) and no less far-reaching options should be available (subsidiarity). Finally, a balance must be made between the interests of the employer on the one hand and the interests of the employee (in short, the employee’s right to privacy) on the other hand. If the interests of the employer outweigh the employee's right to privacy and the other requirements are met, monitoring the behavior of employees is legitimate. Please note: if the company has a works council, consent will have to be requested prior to the control.

Unlawful evidence

It follows from case law that, in principle, evidence which was found after violating an employee's privacy may be taken into consideration by the court in legal proceedings. A dismissal (with immediate effect or otherwise) may therefore also be based on evidence that was unlawfully obtained by the employer. On the other hand, compensation for breach of privacy may be granted.

Moreover, as shown by the judgement of the Tilburg Sub district Court, an infringement of the employee's privacy can contribute to the opinion that the employer has acted seriously culpable, as a result of which the employer must pay to the the employee a fair compensation in addition to the transition allowance.

So, please check carefully whether your organization complies with the specific (privacy) rules that apply in the workplace. Our employment law and privacy team will of course be happy to advise you on this.

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