Ruling of the month – the 10 HR Rulings series

THE EMPLOYER MAY REQUIRE THE WEBCAM TO BE TURNED ON AND USE VIDEO MONITORING

Rechtbank Zeeland-West-Brabant ruling of September 28, 2022 in case 10072897 AZ VERZ 22-61

On September 28, 2022, a Dutch court (Rechtbank Zeeland-West-Brabant) examined the case of a dismissed employee who refused to turn on a webcam during an online training session.

The ruling confirmed that the employer:

• May require an employee to turn on a webcam during online meetings,
• May use video monitoring in justified cases provided by law.

The court distinguished between two tools of employer control – video monitoring and the obligation to turn on the webcam, pointing out the slightly different conditions for their compliance with the law.

An employee who fails to carry out  their employer’s requests compliant with these conditions can be in breach of their basic employment duties, which may lead to  negative consequences..

Background of the case – the employee was employed by an American telemarketing company with a branch office in the Netherlands. He worked remotely and did not visit the office. The employer required him to participate in online training session and to remain logged in throughout the workday with a shared screen and a webcam turned on. He refused to turn on the webcam on the grounds that it was a violation of his privacy and that he felt uncomfortable being monitored for nine hours a day. As a consequence,  the employer handed him a notice of termination.

The employee went to court demanding the revocation of his termination, compensation for wrongful termination and continued payment of wages.

The Dutch court partially agreed with the employee’s arguments, primarily as to the legitimacy of the termination and the reasons justifying it.

The employer’s request to leave the webcam on throughout the workday violated the employee’s privacy and was not considered reasonable. The Dutch court cited CJEU case law, according to which video surveillance of an employee in the workplace is a significant intrusion into his private life, requiring justification.

The court ultimately awarded the employee compensation.

PCS | Littler’s Comment

The ruling was made by a Dutch court, but Poland applies the same privacy protection standards  as the Netherlands due to the ratification of the same legislative acts. Thus, it is possible that the Polish court’s ruling would be similar. The outcome could have been quite different if the employer had set particular time limits for keeping cameras on and/or justified it better.

However, refusing to attend meetings or training sessions could constitute a violation of the employee’s duties, and thus have negative consequences for the employee. The opportunity to see the other person during online meetings is a value rightfully protected by the employer – such a practice is often required by business and social etiquette. During an online video call  an employee can convey much more through non-verbal communication, express avid interest in the meeting and show respect for other participants– and, therefore,  clients and business partners of their employer.

The court agreed with the employee on the issue of dismissal, while at the same time confirming the legitimacy and legality of the employer’s practices.

An employer has the right to supervise an employee, including when working remotely, and this supervision can, in our view, include:

• A request to turn on a webcam for the duration of a meeting or training, and
• using video surveillance in compliance with the terms of the Labor Code.

The right to privacy cannot prevent the use of these lawful surveillance tools. During workhours, an employee working remotely is obliged to comply with their employer’s requests as if they  were in the office.

This is a revolutionary ruling that spikes the guns  of all employees who refuse to obey a lawful request of their employer for no apparent reason.