Belgium
Legal framework
Both the Constitution and the European Convention on Human Rights guarantee the right to privacy, including for employees within the employment relationship. This implies a distinction between private and professional life, although, within the framework of its authority, the employer must take into account the employee’s reasonable expectations of privacy.
This protection is not absolute, particularly in the context of social media.
- Public or broadly accessible posts (e.g. visible to everyone on a newspaper’s social media page or to “friends of friends” on Facebook) generally lose their private character.
- By contrast, the employee may still rely on the right to privacy where the employer gains access to non-public content (e.g. only visible to friends or followers, without the employer belonging to that group).
- Images taken during public events also generally fall outside the private sphere, as presence in a crowd implies that no individual consent is required.
So, dismissal based on online photos? It depends on the context.
In certain cases, an employer may rely on photos of an employee found online. Such photos may even constitute grounds for dismissal where they reveal aspects of the employee’s private life that affect the performance of their duties. The decisive factor is always whether there is a serious breach of trust.
Engaging in other activities during sick leave is not prohibited as such, but may become problematic where it hinders recovery or undermines trust. In any event, an assessment must be made in light of the specific circumstances. Context is therefore key:
- A construction worker is on sick leave due to back problems, but appears in photos on the social media channels of a World Cup event carrying beams while helping build a fan village.
A dismissal for serious cause may be accepted where social media shows that an employee, during sick leave, performs activities that impede recovery or are incompatible with the declared incapacity for work (e.g. performing physical labour despite back issues). Depending on the circumstances (e.g. duration of the illness, frequency of the activities, prior misconduct), this may justify a dismissal for serious cause.
- The incapacitated construction worker proudly posts photos of his construction work for the World Cup village on his private social media page, which are then shared with the employer by colleagues.
In such a case, the employee’s right to privacy may come into conflict with the duty of loyalty. Under certain circumstances – and depending on the facts – photos shared by colleagues may serve as a basis for dismissal for serious cause, especially where the employer did not actively seek out the information but received it passively. However, the employer must still respect data protection rules and carefully assess the proportionality and legitimacy of using such evidence.
- An administrative employee on sick leave appears as a supporter on the social media page of a newspaper.
In this scenario, the employer will carry a higher burden of proof to justify a dismissal for serious cause.
It is generally accepted that employees may engage in leisure activities during sick leave, in particular where the medical certificate allows them to leave their home. Case law even acknowledges that certain activities may contribute to the employee’s recovery, especially in cases of mental health issues.
That said, the assessment remains case by case. If, for example, it can be established (e.g. through a medical check) that the employee simulated incapacity in order to attend the event, this could still constitute a serious cause.
- A waiter is on sick leave due to a cold but is seen on social media performing hospitality activities in his own self-organised World Cup fan village.
A breach of the duty of loyalty may also justify a dismissal for serious cause, for example where an employee visibly engages, via social media, in competing activities to the detriment of the employer.
Key takeaways
The employee’s right to privacy remains fundamental, but is not absolute and becomes more limited in a social media context, particularly where information is publicly accessible. Online photos may constitute a valid basis for dismissal where they impact the employment relationship and demonstrate a serious breach of trust. Ultimately, each assessment requires a concrete and contextual analysis, with proportionality at its core. A warned supporter is worth two!
The Netherlands
Legal framework
An employee reports sick and a few days later photos appear on Instagram showing them at a festival, on holiday or participating in sports activities. Situations like these often raise concerns for employers and can quickly lead to questions about whether the employee is genuinely unable to work.
Under Dutch law, an employee who is unable to perform their work due to illness is entitled to continued payment of wages during sickness. At the same time, employees have a duty to cooperate with their reintegration and must not engage in conduct that delays or frustrates their recovery.
Importantly, being on sick leave does not always mean that an employee must stay at home. The fact that an employee attends a social event, goes on holiday or posts photos on social media does not automatically mean that they are not genuinely ill. The key question is whether those activities are compatible with the employee's medical condition and recovery.
Role of the employer
Employers are entitled to take notice of publicly available social media content and may raise questions if certain activities appear difficult to reconcile with an employee's reported limitations.
However, employers should be careful not to jump to conclusions. A photo or video only shows a snapshot in time and rarely tells the full story. More importantly, employers are generally not qualified to assess whether a particular activity is medically compatible with an employee's condition.
For that reason, employers should avoid making their own medical assessment or assuming that social media posts automatically prove abuse of sick leave.
Role of the company doctor
The company doctor plays a crucial role when doubts arise regarding an employee's sickness absence. If an employer becomes aware of activities that appear inconsistent with the employee's reported limitations, those concerns can be discussed with the company doctor. The company doctor can then assess whether the activities are compatible with the employee's medical restrictions, recovery and reintegration obligations.
In practice, activities that initially seem suspicious may be perfectly consistent with recovery. For example, employees suffering from burnout symptoms are often encouraged to remain socially active and continue engaging in leisure activities. On the other hand, there may be situations where the company doctor concludes that certain activities interfere with recovery or are inconsistent with the employee's reported limitations, especially in the situation where the company doctor concluded that the employee has curtain physical limitations.
Employee obligations
Employees also have responsibilities during sickness absence. They are required to cooperate with reasonable reintegration efforts, follow medical advice and refrain from conduct that unnecessarily delays their recovery. In addition, employees are expected to be honest about their limitations and availability for work.
Where an employee provides misleading information about their condition or fails to comply with reintegration obligations, an employer may be able to take measures. Depending on the circumstances, this could range from a wage sanction to disciplinary action.
Key takeaways
Social media posts can give employers a legitimate reason to ask questions about an employee's sickness absence, but they do not always provide conclusive evidence that the employee is not genuinely ill.
Employers should resist the temptation to make their own medical assessment and instead involve the company doctor where concerns arise. Ultimately, the relevant question is not whether an employee attended a festival, went on holiday or posted photos online, but whether those activities are compatible with the employee's medical limitations and recovery.
Before taking any employment-related measures, employers should ensure that the facts have been properly investigated and, where appropriate, seek guidance from the company doctor.
Luxembourg
Legal framework
Under Luxembourg law, sick leave is intended to protect employees who are temporarily unfit to perform their professional duties. At the same time, employees remain bound by a general duty of loyalty towards their employer during the employment relationship.
Importantly, employees benefit from protection against dismissal during sick leave for a period of up to 26 weeks of continuous absence, provided that the incapacity is duly certified and notified to the employer in accordance with legal requirements. During this protected period, the employer is prohibited from terminating the employment contract.
Employers must also balance their legitimate interests against the employee’s right to privacy and data protection, bearing in mind the strict limitations imposed by Labour Code on employee surveillance.
In case of doubt regarding the legitimacy of a sick leave, the employer may request that the employee undergo a medical examination by a physician of its choosing, even during a period of medically certified incapacity for work. In addition, the law provides for specific institutional control mechanisms, in particular supervision by the Social Security Medical Control (Contrôle médical de la sécurité sociale – CMSS) and administrative monitoring carried out by the National Health Fund (Caisse nationale de santé – CNS).
Sick leave does not imply total inactivity
Sick leave does not automatically require an employee to remain confined to their home or to refrain from all social activities. The decisive criterion is whether the employee’s behaviour is compatible with their medical condition.
Certain activities, including limited social interactions, may be consistent with the nature of the illness. Conversely, activities that are clearly at odds with the stated incapacity may raise legitimate questions.
Social media: a sensitive and limited source of information
Although social media content may sometimes come to the employer’s attention, it cannot be treated as a free or systematic source of evidence.
Even where information is publicly accessible, employers must ensure that its use complies with applicable data protection and privacy rules. Notably setting up employee monitoring requires following a specific procedure provided in the Labour Code. In any case, any practice of routine checks of social media accounts of employees on sick leave would be disproportionate.
Furthermore, evidence obtained in breach of these requirements may be considered inadmissible before the courts, thereby weakening any disciplinary action based on such material.
Recommended approach for employers
Where potentially inconsistent behaviour is identified, employers should proceed in a structured and proportionate manner.
First, it is essential to verify the reliability and context of the information, ensuring that it is publicly available and that it genuinely suggests an inconsistency with the employee’s medical condition. Employers should avoid drawing conclusions based on appearances alone.
Second, where doubts persist, employers should rely on formal and lawful mechanisms rather than informal, intrusive verifications. In particular, they may request that the employee undergo a medical reassessment, either directly through an employer‑initiated medical examination or via the CMSS, or request an administrative control by the CNS.
Finally, any disciplinary measure should only be envisaged where there is clear, objective and lawfully obtained evidence of misconduct, and must remain proportionate to the circumstances. In practice, once the employee has returned to work, the employer could be able to issue an oral or written warning, as an isolated incident during sick leave is unlikely to justify any stronger measures, such as dismissal. Ultimately, each assessment requires specific case by case analysis.
Do not hesitate to contact a member of the Employment & Benefits team; they will be pleased to assist you further!
