On 1 April 2011, the Labour Court of Brussels issued a judgment whereby it held that the Data Protection Act of 8 December 1992 (the “DPA”) does not prevent an employer from making available employee-related information to customers.
On 12 June 2006, the Belgian Social Inspectorate carried out a routine inspection on the premises of the garage N.V. M. and found a cleaning lady working there. Yet, contrary to Article 157 of the Program Act of 22 December 1989 (the “Program Act”), there was no copy of the cleaning lady’s employment agreement on the premises.
The cleaning lady, during a subsequent questioning with the inspector, stated that she was an employee of N.V. Multiple Immo and that, as part of her employment with this company, she was required to work part-time as a cleaning lady at the garage of N.V. M. Since the employer, N.V. Multiple Immo, was obliged to have a copy of the part-time employment agreement stored on the location where the employee is working, the Social Inspectorate imposed an administrative fine of 400 EUR on N.V. Multiple Immo.
N.V. Multiple Immo argued that the requirement set forth in Article 157 of the Program Act would oblige an employer to disclose all information set forth in employment agreement (which includes a large amount of the employee’s personal data) to a third-party (i.e., N.V. M). Since N.V. Multiple Immo believed that this would violate the DPA, it refused to pay the fine.
N.V. Multiple Immo’s failure to pay the fine led the Social Inspectorate to initiate proceedings against it before the Labour Tribunal. The Tribunal stated that although N.V. Multiple Immo has breached Article 157 of the Program Act of 22 December 1989, it cannot be held liable for the act in question because Article 157 of the Program Act constitutes a violation of the DPA.
The Social Inspectorate appealed against this decision before the Labour Court of Brussels, which held that Article 157 of the Program Act does not as such violate the DPA. In its view, this Article does not prevent an employer from making the employment agreement available in a manner which would not violate the DPA. According to the court, N.V. Multiple Immo could have complied with Article 157 of the Program Act by making the employment agreement, among other things, available to N.V. M by enclosing it in a sealed envelope. By doing so, N.V. Multiple Immo would have complied with both Article 157 of the Program Act and the DPA. (LDA)
The case is available at http://www.juridat.be