Evidence can be obtained unlawfully for various reasons.
In many cases, employment law concerns evidence that has been obtained in a way that compromises privacy. This could include secretly recording or having an employee followed.
Illegal obtained evidence
In a specific case, whether evidence has been unlawfully obtained will be assessed on the basis of all the circumstances of the case (Supreme Court July 11th 2014, ECLI:NL:HR:2014:1632). But what is the consequence if it were to be ruled in an employment law procedure that evidence was unlawfully obtained? Can this evidence still be relied upon or will it have to be ignored by the judge?
Article 152 RV stipulates that evidence can be provided by any means and that the appreciation of the evidence is left to the judge’s discretion, unless the law provides otherwise. The fact that evidence has been obtained unlawfully does not automatically mean that the judge should not pay attention to this evidence and that this evidence must be excluded.
The general social interest in having the truth come to light in legal proceedings and the interest that parties have in being able to prove their statements in legal proceedings outweighs the interest in excluding evidence. Only if there are additional circumstances is it justified, according to established case law, to exclude evidence (Supreme Court April 18th 2014, ECLI:NL:HR:2014:942).
The foregoing will be different in other legal areas, such as criminal law.
Amsterdam Subdistrict Court ruling June 18th, 2020
The question of whether there is unlawfully obtained evidence and, if so, whether this would mean that this evidence should be disregarded in an employment law procedure, was recently addressed in a ruling by the Amsterdam District Court came. In the case in question, an employee had been summarily dismissed. To prove the compelling reason presented by the employer – in short, reporting sick contrary to the truth, which seriously damaged the employer’s trust – the employer brought into the dispute the employee’s WhatsApp conversations with, among others, her boyfriend.
During her work, the employee used a colleague’s laptop shortly before her dismissal. The employee has installed a WhatsApp application on this laptop. Apparently the employee was not aware that WhatsApp messages later exchanged via her phone were also visible on the laptop. At some point the employee reported sick. During the employee’s absence, another employee started using the laptop. WhatsApp conversations of the employee who was later summarily dismissed were also revealed.
The WhatsApp conversations showed that the employee was not sick at all. For example, in one of the WhatsApp conversations, the employee writes that she does not know how long she can use the flu to stay at home and in another conversation she indicates that she is thinking well.
The subdistrict court judge considers that it is clear that the employer has taken note of extremely privacy-sensitive information, which the employee did not want her employer to see. However, according to the subdistrict court judge, the employee himself contributed to this by installing the WhatsApp application on the (work) laptop. According to the employer, the employee’s account was not “hacked” to access the information, but the laptop could be used via a simple password.
The subdistrict court judge goes further by considering that, if it were to be ruled that the evidence was obtained unlawfully, this does not mean, according to established case law, that the judge may not take this into account. In general, the social interest in having the truth come to light in legal proceedings and the interest that parties have in being able to prove their statements in legal proceedings outweighs the interest in excluding evidence. The foregoing is only different if there are additional circumstances. The subdistrict court judge indicates that in the present case it has neither been stated nor proven that this is the case. The subdistrict court judge therefore simply takes the evidence into account and rules that there is a legally valid summary dismissal.
