Wangedrag van werknemers - RePub - Erasmus Universiteit ...

processing of personal data within the framework of investigating misbehaviour
of employees, the employer has to comply with the condition of necessity (‘het
noodzakelijkheidsvereiste’). The processing of the data has to be necessary to
attend to his justified interests. Furthermore, the interests or the fundamental
rights and freedoms of the employee, in particular the fundamental right to
privacy, may not prevail. Moreover, the employer can never refer to the
approval of the employee to justify the processing of personal data. For the
processing of criminal data the employer has to formulate rules that are
approved by the works council. If the employer does not act according to the
rules of the WBP, the employees have the possibilities of legal actions on the
basis of the WBP.
Article 139f of the Dutch Criminal Code forbids the employer to make
use of hidden video cameras, which the employees were not informed about in
advance. The employer can fairly easily comply with the ‘kenbaarheidsvereiste’.
Consequently this article does not make the use of hidden video cameras
impossible. A circular letter to the employees, in which the employer informs
the employees about the possible use of hidden video cameras, is sufficient.
Furthermore the right of approval of the works council, the ‘NVPsollicitatiecode’
and the Judicial Data and Criminal Records Act regulate the
right of the employer to investigate. If the employer brings in a private detective
agency, the Private Security Organizations and Detective Agencies Act is
applicable.
The fact, that the methods of investigation used by employers reminds
one of the methods of investigation used in criminal investigations, gave cause
to examine the regulation of these criminal investigations. In the law of criminal
procedure the competences to investigate can only be carried out in accordance
with the conditions prescribed by law. Apart from that, the regulation in the law
of criminal procedure consists of the principle of legality, the requirement of
reasonable grounds for suspicion that an offence was committed, the classical
principles of criminal proceedings and the principles of due process. The
possibility to sanction illegally obtained evidence, can be seen as the final piece
of regulation. As a result of these regulations in the law of criminal procedure
there is an equilibrium between establishing the truth and legal protection. This
legitimises the practice of the competences of the criminal authorities and the
practise of radical methods of investigation.
Do the rules, which regulate the competence of employers to
investigate, offer sufficient guarantees for legal certainty and legal equality of
employees? Because of the resemblance between the methods of investigation
used in criminal proceedings and the resemblance between the employeremployee
and government-citizen relationships, I used the rules and principles
that constitute the regulation of competences in criminal proceedings as
inspiration. I concluded that the current rules, which regulate the competence of
employers to investigate, legitimise that competence of the employer, on two
conditions. First, a legal rule should be introduced that explicitly regulates the
fundamental right of privacy of the employee. Secondly, unambiguous rules
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