Is monitoring employee behaviour an infringement of privacy?

The right to privacy is not absolute, and certainly not at work, where employees may well be liable to apparent intrusions. Under certain conditions employers are allowed to clandestinely monitor their employees’ behaviour. Case law requires a specific and serious reason for this kind of surveillance. This article comments briefly on the judgment of the District Court of Utrecht of 1 December 2010 (National Case-Law No. BP2005), in which the employer started clandestine monitoring in response to rumours about an incident outside working hours. The point at issue was that the person concerned was expected to set an example because of his job.

In brief, the case was about an employee of the driver licensing authority (CBR) who was dismissed for compelling reasons. The employee had caused a traffic accident outside working hours while under the influence of alcohol, and then attempted to conceal the incident from his employer.

Facts

The employee was a Senior Medical Adviser who had worked for CBR since 1997. Part of this job was to assess the medical fitness of applicants for a navigation or driving licence. Until July 2006 he had been involved in training lecturers for the Educational Measure Alcohol and Traffic ("EMA") course, which involved instructing them about the effects of alcohol on the brain, and of drink-driving.

In May 2010 the employee was briefly hospitalized after being involved in a serious car accident while under the influence of alcohol. His driving licence was withdrawn because he was over the alcohol limit. The employee had been on sick leave since the accident. He did not notify his employer of the accident, saying only that he was suffering from stress. In June 2010 the employee mentioned the accident in an interview with his manager. The employee said nothing about alcohol, or that his driving licence had been revoked. In July 2010 CBR issued him with an order to participate in a three-day EMA course about the risks of drink-driving, which is a semiautomatic standard CBR response to an incoming police report.

In August 2010 rumours about the accident were circulating within CBR. The rumours led CBR to examine its internal files on orders issued for drink-driving measures. The files revealed that an EMA order had indeed been given. The CBR then retrieved the police report on the accident. In a subsequent interview with CBR, the employee denied drinking and driving. CBR, mindful of its public function and the position held by the employee, applied to the District Court of Utrecht for termination of the employment contract.

Employee’s defence

The employee argued that the accident occurred outside working hours. CBR has no evident policy on driving conduct in private time. The withdrawal of the employee’s driving licence had no influence on his ability to do his job, and in his own opinion his role within the organization did not require him to set an example. The police report should be disregarded, because CBR obtained it on improper grounds. The police record was not obtained for the purpose of pursuing CBR’s public objective. Neither did CBR conduct itself in retrieving this information in a manner befitting a good employer. Moreover, the employee actually did inform CBR management at an early stage of the suspected alcohol use.

Judgment of the court

The District Court did not suppress the evidence, because CBR had a legitimate interest in investigating its own files and retrieving the police report. The employee had informed CBR of the accident only at a late stage (three weeks afterwards) without mentioning the alcohol use, the withdrawal of his driving licence, or the order for the EMA course. CBR’s ‘function, role and mission’ mean it has an interest in a CBR employee who drinks and drives.

The District Court also found that a high level of integrity is required of employees of an organization such as CBR, at any rate those with a job and position comparable with that of the employee in question. This applies even when they are driving in their own time. The employee did not comply with this requirement, concealed the accident, and failed to acknowledge the objectionable nature of his conduct. The District Court ruled that there were compelling reasons for dismissal.

Conclusion

It follows from this judgment that the threshold for clandestine monitoring can be low. In the above case, CBR resorted to infringing the privacy of the employee based on rumours at work about an incident outside working hours. CBR also resorted immediately to clandestine monitoring, accessing both internal and external files, without hearing the employee’s side of the argument. However, it is questionable whether this judgment constitutes a carte blanche for clandestine monitoring, since it is concerned with a special case. CBR has a public function, which implies high requirements of employee integrity, also outside working hours. The attitude of the employee is also relevant. He persistently concealed from his employer the details of the accident, the alcohol use, and the CBR order. He also denied these facts when confronted. The court has a duty to weigh the method of clandestine or other monitoring against the employee’s privacy interests. The methods and resources used by the employer must not infringe the privacy interests more than strictly necessary. What this means in practice is that an employer must use a less intrusive measure if it could achieve the same result. Had a different organization been involved, which did not have public duties, the court might have reached a different conclusion.

Rachid Aolad-Si M’hammad
Attorney at law, employment law
rachid.aoladSi@vmwtaxand.nl

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