We see it regularly in employment law practice: employers who hire an external research agency to investigate employee behaviour. This may sound like a good idea and it may be an appropriate step in certain cases, but employers should certainly not take it lightly. This week, we discuss a recent case in which engaging an external research agency did not end well for the employer. Read more here:

What were the facts of the case?

The case before the Haarlem subdistrict court involved a request for termination of the employment agreement, submitted by the employer, a primary education foundation with 11 primary schools. The employee had been working as a senior policy officer since 1 January 2007. The employee had a conflict with one of the foundation's directors about the organisation of a study day. This goes from bad to worse. At some point, the director concerned receives an anonymous letter, in which nine anonymous employees (among others) withdraw their confidence in the director. Eventually, the anonymous email also reached the chairman of the Supervisory Board and the parent-teachers association.

The employer, with the consent of the Supervisory Board, subsequently commissioned a research agency, Hoffmann bedrijfsrecherche, to investigate who had drafted and sent the anonymous email message to the Supervisory Board and the parent-teachers association. The employee in question is unwilling to cooperate with this investigation and refused to participate in the ongoing mediation. This prompted the employer to submit a request for termination to the subdistrict court, because of seriously culpable acts or omissions or a damaged working relationship. The employee was also suspended and reported sick.

Hoffmann's investigation report does not reveal who had sent the email in question, but it does show that three Word files and a PDF file were prepared and/or created under the employee's business user account, which served as the basis for the anonymous letters sent via the anonymous email account. Hoffmann further notes that under the employee's business user account, a Word file 'Letter RvT.docx' and a pdf file 'Letter RvT.pdf' were found whose content exactly matched the content of the anonymous letter received by the chairman of the Supervisory Board and the parent-teachers association.

What was the opinion of the subdistrict court?

According to the judge, there was no (serious) culpable act or omission on the part of the employee. However, in the opinion of the judge, the working relationship had been damaged and both parties contributed to this. But that is not all: according to the subdistrict court, the employer acted in a seriously culpable manner by engaging Hoffmann. According to the judge, this is “a far-reaching remedy that should not be used lightly”. In this case, the deployment of Hoffmann was not necessary, according to the subdistrict court judge; there were other options to deal with the matter. Engaging Hoffmann unjustifiably infringed on the privacy of the employee, because her OneDrive was also investigated. Because of this action by the employer, the employee no longer wanted to cooperate in the mediation and continuation of the employment relationship became impossible.

The employment contract was therefore terminated, but the employer had to pay the statutory transition payment plus a fair compensation of €60,000 gross, as well as the legal costs of the employee, which were set at €12,500. The latter is not common in Dutch employment law, but the court considers it justified because of the employer's seriously culpable behaviour.

You can read the full judgment with all the details here.

Final Remarks

This ruling shows that employers should proceed carefully and deliberately when considering using an external research agency such as Hoffmann. Employers should not take this lightly, considering the privacy of employees. The sanction is substantial: not only should the employer pay fair compensation, it was also sentenced to pay considerable legal fees.

Are you an employer or employee and do you have any questions about the use of research agencies? Or do you have other employment law questions? SPEE advocaten & mediation will be happy to help you.