According to the Minister, spy equipment is generally not acceptable
On 1 June 2021, the Minister of Social Affairs answered questions from the Dutch Lower House as a result of the news item 'Spy equipment' in demand due to working from home, trade unions concerned. The Minister's answers show that employers are not allowed to control their employees to an extreme degree when they work from home; the Minister explains the legal framework.
When is it allowed to check employees?
The central theme running through the Minister's answer is the trust between employer and employee, which is the basis for a good working relationship. In some cases it is permitted to monitor employees, but this is subject to strict conditions to ensure the privacy of the employees. Think about working from home / working at a distance. Employers must properly substantiate why it is necessary to monitor employees and why the business interest outweighs the employee's right to privacy.
It is important for employees to know in advance that they may be subject to surveillance. Secret monitoring is therefore, in principle, a no-go for employers.
No distinction between working at the workplace and working from home
Also relevant is the observation that it makes no difference whether the work takes place at home or at the workplace. In other words, the rules for monitoring employees are the same in both cases. So an employer is not suddenly allowed to monitor the employee more intensively because he or she is working at home.
Role of Works Council
It is important to note that under the Works Council Act, the Works Council has the right to consent with respect to intended decisions of the employer concerning regulations on personnel monitoring systems and concerning the processing and protection of personal data of the persons working in the company.
This means that decisions on, for example, monitoring software must be submitted to the Works Council for approval in advance.
The Works Council also has the right to consent with regard to regulations on the processing and protection of the personal data of persons working in the company.
The Works Council also has the right of advice regarding an intended decision to introduce or change an important technological provision.
And then, of course, there is the General Data Protection Regulation (GDPR) and the GDPR Implementation Act. The Minister refers to the website of the Dutch Data Protection Authority (Dutch DPA), where an overview of all conditions can be found, together with an explanation. We also warmly recommend this website to employers and employees.
Complaints from employees
Employees who suspect that their privacy is at stake can talk to their employer. They can also contact the Works Council or the confidential advisor (if any). Furthermore, employees can file a report with the Dutch Data Protection Authority.
Although the DPA notes that the number of complaints about digital monitoring has increased since the start of the corona crisis, the total number of complaints on this subject is limited. Fourteen complaints were received in the period from 1 January to 1 December. Three of them were settled. For one of these complaints, a meeting was held with the organisation to explain what the rules are. For the second complaint, the DPA pointed out to the citizen what steps he or she could take themselves towards the organisation in the first instance to deal with the problem. The other 11 complaints are still being examined by the DPA. The DPA has no insight into the use of monitoring software in sectors.
You can read the full answer to the parliamentary questions here.
Do you also have questions about privacy, whether or not in relation to working from home? The employment lawyers at SPEE advocaten & mediation will be pleased to help you on your way.