25 May 2022
The right to privacy also applies in the workplace.
This includes e-mails sent from work as well as information that can be derived from internet use at work for private purposes. The right to privacy means that the monitoring of employees’ internet use and reading of e-mails is not always permissible. Is monitoring online behaviour allowed? You can read more about this topic here.
An employer is not necessarily prohibited from monitoring employees’ internet and e-mail use. To what extent this is permissible and what factors an employer must take into account was recently the subject of a court case. In this case, the employer confronted an employee with an investigation it conducted into the employees suspected unreported ancillary activities. The employer also suspected that the employee had used his company e-mail for private purposes in the long-term. He presumably did so on a structural basis while using his company e-mail signature and his company laptop. As part of the investigation, the employer monitored the employee’s internet and e-mail use. From the results, the employer concluded that the employee had engaged in several unreported ancillary activities, including during working hours.
In addition, the employer believed that the employee had been involved in mortgage fraud and had accessed customer data via the employer’s retrieval systems. These circumstances weighed so heavily on the employer that it requested the court for permission to terminate the employment contract. The employer based its request either on the fact that the employee had acted in a seriously culpable manner or on the fact that the working relationship had become so damaged that it could not be continued.
The employee argued that the employer did not have the authority to monitor his internet and e-mail use. According to the employee, this was only permissible if there was a clear e-mail and internet protocol in place, which stipulated that the employer could monitor internet and e-mail use and how this could take place, under what circumstances and for what purposes. According to the employee, the employer did not have such a protocol. Nor did the employer have a legitimate interest in monitoring that outweighed the employee’s privacy interest. It was unclear to the court what exactly had prompted the monitoring of e-mail and internet use.
In addition, the court found that the e-mail and internet protocol of the employer was not sufficiently clear. The court was therefore unable to establish the extent to which the alleged conduct had come to light as a result of the monitoring of e-mail use. If the monitoring that occurred was unauthorised then the results of the investigation should be disregarded. Due to a lack of clarity in this regard, the court was unable to ascertain what conclusions should be drawn from the monitoring. The court could therefore not properly assess the employer’s request for the termination of the employment contract and rejected it. Court of Midden-Nederland 16 December 2021, ECLI (abbreviated): 6071
In this case, the employer came away empty-handed because of its lack of a proper policy on e-mail and internet use. The employer could not show that it had informed its employees in advance about what internet use was permitted and what was not. In addition, the employer had not made it clear in advance in which instances, how and under what circumstances monitoring could take place and what purposes it would serve. The ruling makes it clear that caution should be exercised when monitoring employees’ e-mail and internet use.
Firstly, if employers want to monitor the e-mail and internet use of their employees it is important to check whether the employees have been informed in advance that their correspondence can be monitored. Then employers should ask themselves whether they have good reason for monitoring e-mail and internet use.
Finally, employers are advised to consider whether there are less drastic methods and measures available to achieve their goal. This will prevent an employee from claiming that his/her privacy has been infringed unnecessarily.
Do you have any questions about the monitoring of online behaviour? Please do not hesitate to contact me.
Amsterdam District Court 13 September 2021, ECLI(abbreviated): 5029.
This article previously appeared in Rendement.
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