Illegally Obtained Evidence II

20 September 2022 – Yvette Kouwenberg

In our previous newsletter we reported on two cases in which the manner in which the employer had gathered certain evidence was called into question by the employee. This is quite remarkable, since the possible unlawfulness of evidence is, in principle, secondary to establishing the truth in employment law. This is still the principle rule, but in our opinion it does indicate that the aspect of privacy in the workplace is becoming increasingly important.

The admissibility of evidence was yet again recently raised in another case before the subdistrict court of Haarlem (albeit briefly). In the case in question, the employee clocked in with his personal pass after entering work, then logged in on his computer and regularly left work again via an emergency exit (without a pass reader). This made it look as if the employee was at work, but in reality he was not. The employer became aware of this and launched an investigation. The access reports and camera images of the business premises were examined. According to the employer, these reports and images confirmed what the employer suspected and consequently filed a requested the sub district court to dissolve the employment relationship with the employee. 

During the proceedings, the employee argued, amongst other things, that the investigation had not been carried out transparently and independently, that the evidence of the access reports was not admissible and, furthermore, that he had only received the camera images from the investigation at a late stage. The sub district court ruled however that the employee had not sufficiently substantiated his criticism of the investigation and allowed the employer’s evidence as the access reports were extremely detailed and there was no reason to doubt their content. Although the sub district Court agreed with the employee that he had received the camera footage late, the employee had still had sufficient opportunity to study it and to respond to it. The employment contract between the parties was therefore dissolved, without awarding any compensation to the employee.

Although the search for the truth is paramount in employment law, employers should still proceed with caution when gathering evidence against an employee and always weigh up the mutual interests. For more information on this topic, feel welcome to contact our employment law team.

Yvette Kouwenberg