An employee is obliged to behave as a good employee within the framework of the employment contract. In principle, an employer has little to say about what an employee does in his spare time. But can a clear distinction be made between work and private life? And is this boundary still so clear because of social media, among other things? And what role, for instance, does a code of conduct or a staff handbook play in this discussion? We will elaborate on this below.
PRIVACY?
An employee has a right to privacy and respect for his or her private life. The right to privacy is explicit in General Data Protection Regulation. The right to respect for privacy is enshrined in Articles 10 and 13 of the Constitution and Article 8 ECHR. Employers should respect this. Despite this employee right, the line between work and private life seems to be increasingly blurred.
GENERAL
Case law on this subject is very casuistic. Nevertheless, a line can be seen in the way judges rule in such situations. First, there must be a link between the private conduct and the working environment, and then there must be a norm violated by the employee.
The link can be found in the nature of the behaviour, but also in the circumstances under which it took place. Even if conduct is entirely private, the link may still exist because of the nature of the duties and/or responsibilities within the employee’s position.
The standard may arise from obligations based on good employment practice (Section 7:611 of the Civil Code). But the standard may also arise from the employment contract and/or additional codes of conduct or regulations.
EXAMPLES
An example where a private conduct can affect the working relationship is an employee’s social media use. For example, an employee’s employment contract at a college was dissolved because of frequent visits to sexually oriented websites during working hours. An important factor here was that the school had established clear social media regulations and the employee had clearly violated these regulations.
Social media use outside working hours can also affect the work situation. For example, an employee was fired for calling his employer a “whore company” on social media. The employee argued that this was private conduct but the judge did not go along with this. Among other things, because it violated the obligation arising from Section 7:611 of the Civil Code to behave as a good employee.
Spreading racist images in a group app with former colleagues could also lead to dismissal. The court ruled in this case that despite the group app being private, restrictions may apply if messages are perceived by colleagues as insulting, hurtful and intimidating and they no longer feel safe in the workplace as a result. In this case, however, the judge ruled that given the other circumstances, there were insufficient grounds for dismissal.
Besides social media, the phenomenon of staff parties is also a source of court rulings. For example, a manager was dismissed who organised a staff outing outside the compulsory programme as an extra activity called ”Vice on the Red Light District”. Similarly, for drug and alcohol use at staff parties, a clear policy is often crucial.
Finally, behaviour that takes place completely outside working hours and has no direct relationship to work can still lead to dismissal. Here, the employee’s position is relevant. For example, the detention of an employee who had been convicted of sexual abuse, while that employee is a foster care supervisor of children. According to the court, this was sufficient for dismissal. The dissolution request of a care institution was granted due to the fact that an employee (caregiver) was convicted of calling 112 without necessity, stalking (stalking) and attempted extortion. According to the court, the conduct was incompatible with the employee’s job.
Another well-known ruling is the so-called “street racing case”. In which a pilot of the airline Transavia held a “street race” with his father in which a fatality occurred. The judge ruled that the pilot was guilty of serious conduct affecting road safety but this was it insufficient for dismissal. According to the judge, there was no incompatibility with (the nature of) the job of pilot and insufficient violation of a norm to be observed. A factor here was that Transavia did not have a policy which showed that serious traffic violations could have consequences for the exercise of the pilot’s profession. If Transavia had drawn up a clear policy, this ruling could easily have gone the other way.
A current discussion in this context is the participation of employees in riots. In some cases, it can be said to constitute transgressive (private) behaviour. This can have consequences for the employment relationship but only if the behaviour can be directly linked to the work situation, for instance because of reputational damage to the employer’s company as a result of which the employer can no longer be required to retain this employee. This test is up to the court. Social media also plays a big role here. Whereas an employer used to have no idea what an employee did outside working hours, photos and videos are now taken everywhere and often appear on social media.
CONCLUSION
It is clear that case law is very casuistic. However, it can be observed that due to social media, the line between work and private life is becoming increasingly blurred. Because of social media, how an employee behaves in private is suddenly very visible. In addition, it follows from case law that great importance is attached to having clear codes of conduct. That way, employees are familiar with what is expected of them and when a norm is breached. If such codes of conduct have not been drawn up, the general standard from Section 7:611 of the Civil Code (good employee conduct) can be invoked.
Should you have any questions or wish to spar about such a situation, please feel free to contact us.
