Illegally Obtained Evidence in Employment Law
Illegally Obtained Evidence
In the context of employment law, courts do not easily assume
that evidence has been illegally obtained and that consequently
such evidence, such as camera images or e-mail messages, must not
be taken into consideration. In other words: illegally obtained
evidence is usually allowed by the court in employment law
proceedings. One of the few examples in which the Subdistrict Court
disregarded illegally obtained evidence is a judgment of the
Amsterdam Subdistrict Court in 2005. In this case, the employer had
used DNA testing in order to find out which of the employee had
written a letter, which another employee had experienced as
threatening and intimidating. The Subdistrict Court found that this
method of investigating was far-reaching to such a degree, that it
ruled to not take the results of the DNA testing into
consideration. Although the employment agreement was rescinded, the
employee concerned was awarded a very high compensation. Recently,
the Subdistrict Court of Haarlem rendered a decision in which it
ruled that there was illegally obtained evidence that must not be
taken into consideration.
The Facts
After the employee's position had become redundant, the
employment agreement between the employee and the employer was
rescinded by the Subdistrict Court as of 1 July 2008 while granting
a gross compensation of € 240,000. Subsequently, the employer
requested the Subdistrict Court to revoke the order for a
rescission due to the fact that, during the clearing of the
employee's computer, the employer had found e-mails from which
it appeared that already in January and February of 2008 the
employee had been making concrete preparations to start her own
business. The employer was of the view that these new facts - which
the employee had kept secret from the employer before and during
the rescission proceedings - should have led to another decision of
the Subdistrict Court. Moreover, the employer contested that, in
view of these new facts and circumstances, a gross compensation of
€ 150,000 was more than reasonable. The employee was of the view
that the employer had illegally obtained access to the e-mails on
which the employee relied.
The Judgment of the
Subdistrict Court
The Subdistrict Court first and foremost established that the
employer had opened and read a large number of private e-mails of
the employee after the employment of this employee had ended and
without the employee having been informed thereof. Furthermore,
according to the Subdistrict Court, the availability of a protocol
within the employer's company with respect to the handling of
e-mails could not be established. Neither could the purpose -
determined in advance -with which the e-mails were opened and read
be established. The Subdistrict Court was therefore of the view
that by taking notice of the contents of the e-mails concerned, the
employer had unnecessarily infringed the privacy of the employee.
The Subdistrict Court deemed this manner of gathering information
to be illegal. According to the Subdistrict Court this does not
mean however that this information has to be ignored, but that it
must be regarded with restraint and that the interests of the
parties involved must be balanced against each other. In this case,
the balance of interests proved to be to the employee's
advantage. After all, it had not become evident that a concrete
suspicion or another good reason existed on the basis of which the
employer had an interest in opening the e-mails of the employee and
subsequently in taking notice of the contents thereof. Now that the
e-mails should not be taken into consideration during the
adjudication of the request for revocation, the request was denied
for this reason. The employee was awarded a net amount of €2,500 at
the employer's expense as compensation for the costs of legal
assistance incurred by the employee.
Tips
- Draw up clear rules - with the works council's approval
- for monitoring e-mail and the Internet and publish the rules
in a manner that is accessible to the employees. Regulations in
which it is stipulated that employees may not use e-mail or the
Internet for private purposes at all are usually regarded as
too stringent.
- Limit the checking, if any, to objectives that are
formulated in advance. These objectives must be justified and
must therefore fall under one of the grounds mentioned in
Section 8 of the Dutch Personal Data Protection Act. Possible
grounds for checking e-mail and internet use are the
unambiguous consent of the employee, for example through a code
of conduct, or if the employer has a legitimate interest. The
following are examples of employer's interests: examination
of the network for overloads and viruses, verification of
compliance with codes of conduct and more occasional interests,
such as the checking of the inbox of a sick employee or of an
employee against whom a justified suspicion of violation of the
codes of conduct exists.
- Be sure that there is sufficient transparency. Within the
company it must be clear if, and if so, on which scale and with
what intensity, e-mail and internet use are being checked.