The Department for Work and Income of the City of Amsterdam (‘DWI’) was getting complaints of customers about its accessibility, not answering requests to return calls, and not answering e-mails. To improve this, the DWI therefore decided to change its Code of Conduct such that a manager got the right to inspect the mailbox of his employees (temporarily). The Works Council was not asked to consent to this decision and subsequently invoked the nullity of the decision with reference to the right to consent set out in Section 27 (1) under k and l of the Dutch Works Councils Act (“WOR”).
The Subdistrict Court
The Subdistrict Court held that the DWI has a Code of Conduct providing that it is only allowed to inspect an employee’s mailbox without the employee’s consent if there is a suspicion of a violation of integrity. As a result of the DWI’s decision, a manager can now also inspect the mailbox of employees if this is not the case. In fact, this implies a change to the Code of Conduct, for which purpose the consent of the Works Council should have been asked.
Section 27 (1) under l of the WOR
Section. 27 (1) under l of the WOR concerns an arrangement for, or that may be used for, observation of or checking the presence, conduct or performance of persons who work for the undertaking. In the opinion of the Subdistrict Court, the DWI’s decision is not directly aimed at this check, but may be a suitable tool for it. It cannot be excluded that the manager performing this kind of check may come across work backlogs of an employee. Through a technical facility, the manager can check a mailbox of all persons or a group of persons working in the enterprise. Thus, all criteria under l have been fulfilled.
Section 27 (1) under k of the WOR
Under the Code of Conduct, the employee may use his e-mail for private purposes to a limited extent. The Subdistrict Court therefore holds that it cannot be excluded that there is ‘protection of personal data’ as set out in Section 27 (1) under k of the WOR.
The foregoing means that the Works Council had a right to consent in respect of the decision. According to Section 27 (1) under k or l of the WOR, the DWI should have presented its decision to change the Code of Conduct to the Works Council to request its consent. As the DWI has failed to do this, the decision is void.
Employers must check carefully whether certain projected decisions are subject to consent. A decision to change regulations or a protocol that leads to a right to inspect the mailbox of employees may rather easily be a decision subject to consent.