Summary

The company is a US-based software development company providing businesses with tailored software solutions, while the employee worked remotely from his home in the Netherlands. In August 2022 he received the instruction to participate in the ‘Corrective Action Program (“CAP”) – Virtual Classroom’, which required to be logged in during office hours, to share his screen and to turn on his webcam.

The employee did not follow the instruction to turn on his camera and replied to the company after a reminder: ‘I don’t feel comfortable being monitored for 9 hours a day by a camera. This is an invasion of my privacy and makes me feel really uncomfortable. that is the reason why my camera is not on. You can already monitor all activities on my laptop and I am sharing my screen.’.

After two more reminders and his refusal to switch on his camera, the employee received an email that his employment was terminated because of ‘refusal to work’ and ‘insubordination’. The employee challenged this dismissal before a Dutch court.

First of all, the court stated that the dismissal was not in line with Dutch labour law as it was not thoroughly motivated.

Secondly, the court reminds of the strict conditions when it comes to the observation of employees and refers to jurisprudence of the European Court of Human Rights in relation to the right to private and family life (Article 8). Although the court acknowledges that article 8 of the European Convention on Human Right is in principle limited to the state and its citizens, there are situations in which an employee can invoke this right in a private law-employment relationship, for instance if the state does not sufficiently protect this fundamental right. The latter is applicable in this case according to the court. More specifically, the court referred in this regard to the statements of the employee (i.e. that he found himself uncomfortable having to leave his camera on all day) and Chetu's reply (i.e. that there was no difference with being in an office all day where he could be seen physically by everyone). The court ruled out the application of the GDPR because the employee would only be observed during working hours and no recordings would be made of him that would be stored or otherwise used in any way. Therefore, no processing of personal data occurs according to the court, which excludes the application of GDPR protection. Therefore, in the absence of protection in the case of mere observation of the employee, the court held that the lawfulness of the webcam monitoring can be tested directly under Article 8 ECHR.

This test under art. 8 ECHR then led the court to the opinion that Chetu's obligation on the employee to have its camera switched on during working hours violates his right to respect for his private life, due to the lack of justification for requiring such action. Subsequently, there was no question of the employee refusing to comply with a reasonable order or instruction, meaning that the refusal to turn on the webcam did not constitute an urgent reason for the immediate dismissal.

Chetu has to pay the employee a heavy fine, consisting of back wages and wages that he could have earned.