Surveillance in the (home) workplace: what is an employer allowed?
Previously we wrote an article about the rules for camera surveillance in the workplace. The need for employer monitoring exceeds – partly in view of the corona pandemic – the mere checking of the workplace with cameras. Employers also have a need to monitor employees’ browsing habits, as well as the emails they send. And, of course, they want to prevent employees from spending hours Internet shopping and watching TV at the home workplace during working hours. But isn’t monitoring this a violation of the employee’s privacy, especially at the home workplace?
In this article, we address that question. Is an employer allowed to use monitoring tools and what rules must the employer abide by during a monitoring. To form a clear picture, we will also discuss case law.
When may an employer conduct structural workplace monitoring?
The employer must comply with privacy legislation, including the General Data Protection Regulation (AVG). Does the employer want to monitor the (home) workplace? If so, this must be announced in company regulations or the personnel handbook. In addition, the Works Council (if any) must grant permission for this monitoring. Finally, a legitimate interest is always required. And that legitimate interest is not always present, as case law shows.
Is an employer allowed to check an employee’s e-mails?
The District Court of Amsterdam awarded an employee compensation of € 10,000.00 after the employer had violated the privacy of the employee. The court ruled that the employer searched the employee’s mailbox without concrete suspicion, prior notice or consent. This was allegedly done to gather information about ongoing projects. However, the years 2016, 2017 and 2018 were also searched. According to the court, this violated Article 8 ECHR, especially since nothing shocking came to light. Also, the employer should have hired an external agency for the investigation, according to the court.
Is camera surveillance in the workplace permitted?
In determining the amount of the fair compensation, the North Netherlands District Court took into account the events surrounding the placement of cameras on the work floor. The employer had placed hidden cameras without notice to the employees and without the consent of the Works Council without having a legitimate interest in doing so. The hidden camera surveillance should also have been reported to the Personal Data Authority. Partly because of this, the court ruled that the employer was seriously culpable. Learn more about camera surveillance, read: rules for camera surveillance in the workplace.
Is an employer allowed to monitor the home workplace?
When deploying surveillance equipment, it does not matter whether the employee works in the office or at home. Working from home is not a reason for the employer to monitor more strictly. An employee is not obliged to agree to a home visit. An employer cannot impose sanctions for refusal. The same applies if the employer asks for a photo or video of the home office. Checking e-mails, telephone traffic, surfing behavior and behavior on social media is in principle not possible since this is private. However, when the employer complies with the requirements, control is possible.
Looking for an employment lawyer in Rotterdam?
In short, as an employer you cannot simply monitor your employees. The privacy of your employees must always be taken into account. Therefore, always contact an employment law specialist. They can check whether you meet the requirements.
Would you like to know more about the means of control you can use as an employer and how you can do this correctly? Please contact Lisa Kloot of LVH Advocaten in Rotterdam. She will be happy to help you implement these means of control, including drafting an internet and e-mail policy and/or a personnel handbook.
