2 August 2023

Daylight robbery

By Amber Willemsen

People have been working from home en masse since the corona pandemic and, contrary to the expectations of some labour market experts, there seems to be no change in this trend. This is hardly surprising as working from home can have benefits for both employers and employees.

Employees benefit from less travel time and are more productive than their office-based colleagues. Another big advantage of working from home for employees is the freedom that comes with it. But how do you deal with employees who take this freedom too far and work fewer hours than they report? How can you monitor daylight robbery?

Daylight robbery

The recent ruling by the District Court of North Holland is interesting in this context. In this case, the employer had decided that employees could work 50% of their working hours from home and were required to be present in the office for the other 50%. The employee in question evidently disliked this and devised a system where he clocked in at the company premises at the start of his working day by entering the main entrance with his access pass and logging in to his laptop at his workplace, and then leaving the building through the emergency exit – the only door that did not require an access pass – and driving off in his car. The employee then returned at the end of the day, logged off from his laptop at his workplace and left the building by the usual route. When the employer learned of this and the employee was unable to provide a sufficiently satisfactory explanation, the employer submitted a termination request.

Ruling

The court held that on the basis of the evidence provided by the employer, it was established that the employee was not present at the company premises for a large part of the day on the working days in question and did not work much, if at all, as claimed by the employer. The employer provided evidence of this in the form of log-in and log-out records at the premises and CCTV footage of the car park, the emergency door and the main entrance. The court also took into account that the employee had seen the images and data and had been given the opportunity to respond to them. The court therefore terminated the employment contract for serious imputable conduct.

The lesson to be learned

Theft of working hours is therefore severely penalised – at least by this court. This would also be the case if an employee was supposed to be working from home, but was actually not working for no good reason. The prerequisite, however, is that it must be conclusively established that the employee has actually ‘stolen’ working hours, in the sense that he received pay but did not work without a proper reason. The employee must therefore be given the opportunity to explain whether or not he worked, and his reason for doing so. In addition, a court will be less strict if such an incident only occurred incidentally.

District Court of North Holland 15 July 2022, ECLI (abridged): 6301

Monitoring

An employer may only monitor the activities of an employee if it complies with the strict requirements of privacy legislation. For instance, it must be able to make a good case for the need for employee monitoring. The employer must also be able to show that its interest outweighs the invasion of the privacy of employees. What is and what is not allowed varies from case to case.

Social control

Social control is the most effective permitted control. Employers should make sure that employees have regular meetings with each other and with their manager. This is conducive to team engagement and also ensures that employers know what is on employees’ minds. This measure hardly violates employees’ privacy and enables employers to act quickly if necessary.

Internal guidelines

More drastic measures may be required in special cases. For example, if an employer has a reasonable suspicion that an employee is engaging in daylight robbery. In such case, the employer would be wise to draw up internal guidelines on the method of control to be used. In fact, privacy legislation requires that employees are made aware in advance that they may be monitored.

More information

Do you have any questions or would you like advice about daylight robbery? Please do not hesitate to contact us.

District Court of North Holland 04 October 2022, ECLI (abridged): 8594

This article appeared earlier in Rendement.

Amber Willemsen

Amber Willemsen

Lawyer

Amber Willemsen is a lawyer within the Employment law section.

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