Recently, the subdistrict court of The Hague ruled in an immediate dismissal case that a telephone conversation recorded by the employer had been unlawfully obtained and had to be disregarded when assessing the case.

What was the case?

An employee had been working as a sales consultant for a car dealership since 2019. Under the terms of the collective bargaining agreement, this employee was not permitted to start his own competing business without written permission from the employer. The relationship between employer and employee deteriorated in 2021. At some point, the employer noticed that the employee was increasingly making his business phone calls to customers outside the office, despite instructions to have the phone calls in the office. The employer suspected that the employee was engaging in competitive activities during working hours. Subsequently, the employer decided to listen to an audio record of a telephone conversation between a customer and the employee. In that conversation, the employee said that he was working for himself as a side activity and that he might would have a car for the customer. The employee was then dismissed immediately for conducting his own business and in doing so offering his cars to customers of his employer. The employee contested the dismissal, arguing among other things that his privacy rights had been violated because the employer had never informed him of the fact that audio records of telephone conversations were being made and he had never given his consent to do so.

Judgment of the subdistrict court

The subdistrict court first stated that an employer only has the right to record telephone conversations of employees, if all the conditions set out in the GDPR are met. The basic principle according to the GDPR is that making audio recordings must be necessary and proportionate. Furthermore, the employer must have a legitimate interest in recording the telephone conversations and that this interest cannot be guaranteed in a less intrusive manner. Another condition – according to the subdistrict court – is that both the employee and the client must agree in advance to recording the phone calls and that it must be clear to the employee at what moment the recording starts and ends. Furthermore, it is required that the employer informs its employees and the customer in advance about recording telephone calls and the intended purpose thereof, that the employer adequately secures the recordings made and that the recordings are not kept longer than necessary for the purpose for which they were made. Making secret recordings is only allowed in exceptional situations (such as, for example, the suspicion of criminal acts or wrongdoing), according to the subdistrict court.

The subdistrict court annulled the instant dismissal. The suspicion that the employee was engaged in competitive activities during working hours was, in the opinion of the sub-district court, not sufficiently substantiated to justify the secretly recording of telephone conversations. The employer’s contention that the recordings were made for the purpose of improving service and monitoring productivity was also not sufficiently substantiated. For example, there was no evidence that the telephone calls were evaluated. The employer had no legitimate interest in making the audio records, acted in violation of the GDPR, and thus unlawfully violated the privacy of the employee. The subdistrict court subsequently ruled that the evidence had been unlawfully obtained and furthermore had to be excluded due to additional circumstances. These included the fact that the employer had based its suspicion on facts that at most justified the presumption that competitive activities might were being initiated. Another additional circumstance was that it had not been shown that if the employer had called the employee to account for this, the employee would not have come clean.

The audio record of the telephone conversation was disregarded by the subdistrict court when assessing the validity of the instant dismissal. This meant that the basis for the instant dismissal lapsed and the dismissal did not uphold. The subdistrict court did however terminate the employment contract because of the disrupted working relationship. The employee was entitled to the transition allowance.

Advice

It is not often that a subdistrict court disregards unlawfully obtained evidence. This judgment demonstrates once again that it is important that the conditions applicable to the monitoring/checking of employees are carefully observed and that the implementation of a well-designed monitoring policy is a ‘must’.

However, in our opinion, the subdistrict court was wrong in stating that the employee should have given his prior consent to the recording of his phone calls. In an employment relationship (due to the dependent position of the employee), consent hardly ever provides a valid basis for processing personal data. There are other valid legal grounds on which the processing of personal data can be based. However, prior to introducing a staff monitoring scheme, the consent of the Works Council must be requested.

For questions or advice on this topic please contact Lise van den Heuvel (+31-6-23492248).

This article was published in the Newsletter Vestius of April 2022

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