Controversy over right to tap employees' conversations in Dutch companies

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The media regularly report on cases where employees' telephone conversations have been tapped by Dutch companies. The Code of Conduct drawn up by the Registration Chamber, which is intended to guarantee the privacy of employees, does not always operate effectively in practice. Judges still remain free to decide what evidence is admissible in such cases. Negative publicity might yet prove to be a much more effective countermeasure.

In early 1996, a controversy was sparked over the eavesdropping of employees by the Postbank. The Registration Chamber (Registratiekamer) - which supervises compliance with the Data Protection Act - began an investigation as a result of the various complaints it had received. The investigation focused on the Postbank's use of call-centres and ECI (a mail-order company). In its report ("When the phone is picked up", November 1996), the Registration Chamber found that banks, mail-order companies and similar enterprises have an interest in monitoring the quality of the telephone conversations made by employees because this comprises an important part of the service. However, according to the Registration Chamber, this does not mean that the fundamental freedom and right to privacy of the employee must be completely cast aside. In response, the Registration Chamber formulated a number of conditions under which conversations may be tapped and conversational data recorded.

Over the same period, the subdistrict court in Utrecht ruled on the admissibility of evidence obtained from recorded telephone conversations. This concerned a company director who, although he already knew his employment would be terminated, still had to reach agreement with his employer on the level of severance payment. Acting on the advice of its lawyer, the employer secretly listened in on the director's telephone conversations for three weeks. The tapes revealed that the director was engaged in setting up his own company and siphoning off clients. The judge of the subdistrict court found that, although the evidence was obtained illegally, it did not need to remain inadmissible in this case. It is clear from such a ruling that, in practice, the Registration Chamber's Code of Conduct (which includes a ban on secret wiretaps and states that recorded conversations must be discussed immediately with the employee) is rendered largely meaningless. The judge even set the severance payment at a lower than customary level. A poignant detail in this case was that even the conversations between the director and his lawyer were recorded. For this reason, a complaint has been filed against the employer's lawyer with the Netherlands Bar Association.

According to recent reports in the media, the retail concern AHOLD has also been accused of tapping the conversations of one of its employees. However, after making enquiries with the employee's lawyer, it was found that no wiretapping had actually taken place. In a dispute about the nature of the employment contract, and in the absence of any written evidence, the head of the personnel department had stated that all the conversations between the employee concerned and the personnel department had been recorded. In this way, the head of the personnel department suggested that recorded evidence existed. AHOLD's board of management refused to initiate an investigation into its "wiretapping practices" because wiretapping in the company was considered to be absolutely out of the question. The judge dissolved the employment contract and explicitly stated that the "wiretapping controversy" played no part in his determination of the level of compensation, thereby allowing the employee's lawyer to keep his trump card unplayed. In the end, by using the argument that the statement made by the head of the personnel department was tantamount to intimidation and that it undermined trust between employer and employee, the employee's lawyer succeeded in securing a very favourable financial settlement from AHOLD.