Can the employer monitor its employees that are working from home via their webcam?
Can employers track how efficient employees are in their 'pyjamas'?
So many of the fears employers had about letting employees work from home have proven not to be worthwhile, and instead employers found that the arrangement has not negatively impacted productivity or profitability. Working from home has given employees freedom of not having to be at the office, freedom of not being monitored at any time, freedom of working from the comfort of their home and also freedom to sometimes work in their pyjamas. But can employers track how efficient employees are in their pyjamas as opposed to their business attire?
Notably, employers are continuously prompted to assess the employees’ wellbeing, to see what works best for flexible work. And the trend to enhance the data analytics was only going to grow as working from home became more common in a post-Covid world. Nevertheless, data analytics also has its limits when it comes to tracking employees.
There was a recent decision by Zeeland-West-Brabant District Court (Netherlands) in the case of Employee v Chetu Inc. (the employee’s name is anonymised), which provides an insight into the question of whether the employer can impose on its employees the obligation to continuously provide webcam feed of when they are working from home.
The employee joined the employer in 2019 and worked as an inside sales representative for the acquisition of new customers. In accordance with his employment contract, the employee performed his work exclusively from home.
In 2022, the employer implemented a virtual classroom programme, requiring employees working from home to be continuously logged in throughout the working day, share their screen and leave their webcam feed on.
The employee refused to be monitored for 9 hours a day by a camera stating that this is an invasion of his privacy and makes him very uncomfortable. Additionally, the employee noted that the employer can already monitor all his activities on his laptop and that he was already sharing his screen.
There were several more back-and-forths between the two, and after several warnings, the employer extraordinarily terminated the employee’s contract by e-mail with the following content:
Your employment is hereby terminated.
Reason: Refusal to work; Insubordination”.
The employee then initiated a claim for annulment of the extraordinary termination of employment contract. The employee held that camera surveillance for 9 hours a day during working time is disproportionate and not allowed in the Netherlands and that he was already monitored for output via software installed on his laptop.
The Zeeland-West-Brabant District Court judgment
The Zeeland-West-Brabant District Court upheld the employee’s claim for annulment of the extraordinary termination. Under the Dutch Civil Code, there are three requirements for a legally valid extraordinary termination of employment agreement (1) there must be an urgent reason, (2) termination must be on the basis of the urgent reason and must be immediate and (3) the reason must be communicated to the employee in good time and with sufficient clarity. The District Court did not find that any of the requirements were met, however for the purpose of this summary, we will focus on the most critical one: There must be an urgent reason for termination.
The employer cited as the urgent reason for termination “refusal of work” and “insubordination”. Thereby, the urgent reason was employee’s work refusal and disobedient or unruly behaviour or at least as persistent refusal to comply with reasonable instructions or orders on the part of the employer.
In its consideration, the District Court referred to Article 8 of the European Convention on Human Rights and the judgment of the European Court of Human Rights (Antović and Mirković v Montenegro), which found that video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee’s private life.
In light of this, the employer’s requirement for the employee to leave its webcam switched on, violated the employee’s right to respect for his private life, without there being any justifiable ground for doing so. Thus, the District Court assessed that there was no reasonable instruction to which the employee was required to comply, and hence, there was no urgent reason for extraordinary termination of the employment contract.
It is fair to say that the Dutch case has attracted significant international attention primarily as a result of more prominent use of work from home in the post-COVID era. However, there are salient legal and HR takeaways from the ruling of the Zeeland-West-Brabant District Court, despite it being tried under Dutch law:
- If you strive for efficiency and employees’ wellbeing, micromanaging employees and making them uncomfortable may not be the appropriate approach;
- Instead of the uncomfortable approach, better results are achieved by opting for encouragement and rewarding good job performance;
- If you require your employees to have their webcam feed always on, you need to have a good and justifiable reason, whereas the standard for this will be very high.
If you are interested in knowing more about the use of webcams during the employment relationship, see also the post here.
How we can help
Jadek & Pensa commonly acts for employers who wish to implement work from home arrangements and assists in reviewing policies and instructions given to employees. In the event the employees refuse to follow such instructions, we also assess the matter, give reasoned advice on how to move forwards and assist with or manage any further action taken against the employee, including guiding through the procedure for the termination of employment relationship.
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