The employer’s right to control versus the employee’s private life

The employer, who submits evidence of violations by his employee, should best – also after the decision of the Dutch-speaking Chamber of the Belgian Supreme Court of 10 March 2008 – comply as good as possible with the rules relating to the protection of the private life of the employee in order to avoid that the judge refers afterwards the evidence to the waste-paper basket.

The right to respect of the private life is a fundamental right, which is protected by the European Convention on Human Rights as well as by the Belgian Constitution. For employees, this results in the right to protection of their private life. This right tends to conflict with the employer’s right to control, which follows from his authority relationship with the employee. In order to find a balance between both rights, the government and the employers’ federations and trade unions have taken initiatives to issue rules on this matter. As such, the employers’ federations and the trade unions have laid down rules in three collective labor agreements relating to the modalities of control on the work floor by means of security cameras (CLA n° 68 dated 16 June 1998), of control on the use of electronic on-line communication data (CLA n° 81 dated 26 April 2002) and of the exit-control of workers when leaving the company (CLA n° 89 dated 30 January 2007). The three CLA’s have been extended by royal decree. Consequently, these rules are public policy rules, which may be criminally sanctioned (at least up to the date on which the relevant stipulations of the Social Penal Code become effective).

The structure of the CLA’s is quite similar: exercising control is subject each time to compliance with three principles: the principle of finality, the principle of proportionality and the principle of transparency. The principle of finality means that the employer is entitled to exercise control provided he aims at legitimate goals (as an example the protection of the company’s interests (CLA n° 81) and the protection of company’s property (CLA n° 68)). The principle of proportionality holds that the controlling measures, which result in an intrusion of the employee’s private life, must be adequate to achieve the legitimate goal and that these measures restrict the intrusion in the private life of the employee to the maximum possible. Finally, the principle of transparency imposes a collective and individual duty of information on the employer. This implies that the employer, who wants to install a system of control, must inform the workers and their representatives beforehand on the existence and the functioning of the system of control and on the goals thereof.

Despite these rules, there remains a tension between the right to protection of the private life of the employee and the employer’s right to control, particularly with respect to evidence illegally obtained by the employer. Primarily in cases of breach of the employment contract for just cause, this issue arises. Indeed, when the employer identifies just cause and fires the employee, the employer has the burden of proof. If the evidence has been obtained by means of a legitimate technique of control without complying with the rules, laid down in CLA’s, that have been extended by royal decree, and providing for the modalities that have to be respected when exercising control (as an example the duty of information), such evidence is in principle illegally obtained. The issue arises then what value a judge may reserve to such evidence. The employment tribunals and the employment courts of appeals maintained (maintain?) generally that such illegally obtained evidence couldn’t be taken into account. The consequence thereof may be that the employee may violate the law without punishment, to the extent the employer submits illegally obtained evidence of the serious misconduct. As an example, the Antwerp employment court of appeals held in its judgment of 6 January 2003 that the evidence of a theft by an employee, illegally obtained by video, could not be withheld to decide on the case.

In its decision of 10 March 2008 the Dutch-speaking Chamber of the Belgian Supreme Court handled a case concerning a decision of the Unemployment Office to suspend an employed since he was working in his brother’s shop. The police had established an official report on these activities of the unemployed and sent it on to the social inspection authorities. Transferring such an official report to the social inspection authorities is prohibited because the transfer is an infringement on the secret nature of the criminal investigation process. Nevertheless, the Unemployment Office decided to suspend the payment of the unemployment allowances to the unemployed on the basis of the official report. The employment court of appeals annulled the decision of the Unemployment Office because the decision was taken on the basis of the illegally obtained official report.

The Dutch-speaking Chamber of the Belgian Supreme Court annulled the decision of the employment court of appeals and held that a judge can not refuse evidence purely on the basis of the fact that it had been illegally obtained, but that a judge must decide on the admissibility of evidence and that evidence can be refused only in the case of non-compliance with formal requirements imposed against penalty of nullity and if the way the evidence has been obtained adversely affects the reliability of the evidence  or the right to a fair trial. In that assessment the judge takes – according to the Dutch-speaking Chamber of the Belgian Supreme Court – into consideration a whole of circumstances. This decision of the Dutch-speaking Chamber of the Belgian Court of Appeals extends the case law with respect to criminal matters (the Antigoon decision dated 14 October 2003) to civil cases.

It still remains to be seen how things will develop further, particularly because the French-speaking Chamber of the Belgian Supreme Court did in its decision of 10 November 2008 not concur with the decision of the Dutch-speaking Chamber.

As long as it is not clear which tendency will be followed by the employment tribunals and the employment courts of appeals, prudence remains the message.