Wiretapping employees in the Netherlands – let’s get to the tape? | Smaller
A sales consultant at an exclusive car dealership got overly enthusiastic when he told a customer in a phone call during working hours that he was starting on his own ‘in the background’ and asked the customer if he might be interested in his own Audi Rs6.
What the sales consultant didn’t know was that his employer was secretly listening in on his phone calls with customers. The car dealer suspects the sales consultant of using his customer file during working hours to compete with him. After issuing two official warnings to the sales consultant for being late, the sales consultant told the dealer that he could seek work elsewhere. The sales consultant then started taking more and more calls from customers outside the office premises and ignored instructions to take business calls inside the office.
After the aforementioned telephone tapping, the commercial adviser was dismissed without notice. The commercial adviser mainly asked the district court to annul the dismissal and, in the alternative, claimed fair compensation of nearly 30,000 euros. He argued that the car dealer acted culpably and seriously violated his privacy by recording his phone calls in secret and without his consent. The car dealer, for its part, asked the district court to terminate the employment contract in the event of cancellation of the dismissal.
Secret sound recordings – GDPR requirements
The district court found that an employer can only record its employees’ phone calls if it meets all the requirements of the GDPR. The recordings must be necessary and proportionate, and the employer must be unable to safeguard its legitimate interest in the recordings in a less intrusive way. Secret recordings are only permitted in exceptional circumstances, for example in the event of suspected criminal offenses or professional misconduct within the company. In all other cases, call participants:
- must accept the registration beforehand;
- must know when recording starts and ends; and
- must be informed of the purpose of the recording, how it is secured and be informed that they will not be kept longer than necessary for this purpose.
According to the district court, the suspicion that the business adviser was busy starting up competing activities during working hours did not justify making secret recordings of telephone calls. This was not changed by the fact that the employee had registered as a car salesman with the Chamber of Commerce after his dismissal.
Invasion of privacy → exclusion of illegally obtained evidence?
The car dealership had to comply with said GDPR requirements as it did not meet the high threshold for secret sound recordings. Failing to do so, she unlawfully invaded the business adviser’s privacy. The evidence from the audio recordings was therefore obtained illegally.
According to the sub-district court, this did not automatically mean that the evidence should be excluded. In principle, the general public interest in establishing the facts and the interest of the parties in being able to substantiate their arguments plausibly outweigh the interest in excluding illegally obtained evidence. According to the Dutch Supreme Court, the exclusion of such evidence is only justified if there are concomitant circumstances.
According to the district court, there were indeed such concomitant circumstances, given that:
- the car dealership had based its suspicion of competing activities on facts that, at most, justified the suspicion that there might be competing activities (or their initiation);
- there is no indication that the trade adviser would have refused to enter into talks and put his cards on the table, which means that the investigation using secret sound recordings was not (or not yet) necessary;
- other than registration with the Chamber of Commerce, there is no evidence that the business adviser actually created a competing business.
Therefore, the sound recording had to be rejected and it could not therefore be established that the sales consultant had been rightly dismissed without notice. Since it was established, according to the district court, that the business consultant had (in the meantime) begun to prepare a competing company, the employment contract was terminated due to a deteriorated employment relationship and the car dealership was ordered to pay a transition payment. The district court concluded that there was no need to award fair compensation.
In a nutshell, there must be exceptional circumstances for an employer to be able to record an employee’s phone calls in which they do not participate. If an employer suspects that an employee is busy starting a competing business while employed, they would be well advised to first enter into talks with the employee and voice their suspicions. If such suspicions were justified, a suspension and dismissal would seem obvious. Although the employer overstepped the mark by recording the telephone calls and summarily dismissing the employee, the financial consequences of this decision were limited to the payment of the employee’s salary until the new end date and the payment of the transitional payment. The employer would have had to make the same payments even if they had complied with the rules.