Illegally obtained evidence

7 June 2022 – Yvette Kouwenberg

In employment law, unlawfully obtained evidence generally counts as evidence because fact-finding generally outweighs the right to privacy. However, the sub district court of The Hague recently ruled differently. In that particular matter, an employer had secretly recorded a number of telephone conversations of one of its employees working as a sales representative. Based on the recordings, the employee was dismissed instantly. 

Under the GDPR, making a sound recording is subject to a number of conditions. Among other things, it must serve a previously determined legitimate purpose (e.g. to improve service) and the making of a sound recording must be necessary and proportionate (i.e. the purpose cannot be achieved in any other way and the means must be proportionate to the purpose). Moreover, secretive recording of telephone conversations may only take place in an exceptional situation. The sub district court ruled that the employer in question had not complied with these requirements and set aside the recordings as they had been unlawfully obtained. As a result, the instant dismissal was overturned. 

In another case before the sub district court in Utrecht, an employer had monitored the e-mail use of one of its employees and had submitted a request to terminate the employment contract on that basis. The sub district court rejected the particular request, because the employer could not properly clarify whether the (manner of the) monitoring had taken place with the required safeguards. According to the sub district court, it could therefore not be established whether the evidence had been gathered lawfully, which led to the rejection of the request for dissolving the employment agreement. 

It is highly doubtful whether, based on these judgments, it can be concluded that the leading line of case law has changed. However, it does indicate that privacy is gaining ground within employment relations and that care should always be exercised in that respect, including within the framework of file compilation, so that any discussion about the gathering of evidence is limited as much as possible.

Yvette Kouwenberg