Employee monitoring in the Netherlands: what may employers do?

As an employer in the Netherlands, you may monitor employees only if you have a specific legitimate interest, no less intrusive measure will do, and staff have been informed in advance what is monitored and why. In most cases you also need the prior consent of the works council (ondernemingsraad) under Article 27(1) of the Works Councils Act (WOR); a monitoring system introduced without it is void if the works council invokes the nullity.

This article explains which rules apply, why consent of employees rarely works as a legal basis, what you must document, how the works council is involved, and what the rules mean for cameras, tracking, email and homeworking.

Which rules govern employee monitoring?

Four sets of rules apply at once. The GDPR (in Dutch: AVG) governs every processing of personal data, and the GDPR Implementation Act (Uitvoeringswet AVG, UAVG) adds the national rules and gives the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) its powers.

Article 8 of the European Convention on Human Rights protects private life, including communications at work. Under Article 7:611 of the Dutch Civil Code (BW), you must act as a good employer, and courts apply that standard to monitoring that is disproportionate in the employment relationship. Criminal law sets the outer limit: under Article 139f of the Dutch Criminal Code (Sr), secretly making images of a person in a home or other non-public place with a hidden device is an offence, and under Article 139a Sr intentionally eavesdropping on a conversation you are not part of with a technical device is also an offence.

Which legal basis can an employer use?

In practice only the legitimate interest basis works. Consent of employees is rarely valid, because the dependency in the employment relationship means it is seldom given freely; a monitoring programme built on signed consent forms rests on nothing.

Necessity for performing the employment contract is equally weak: paying wages requires administration, not keystroke logging. A legal obligation justifies registration only to the extent the obligation reaches, for example working time records.

The legitimate interest test has three steps that you must work through and record. First, define the interest concretely, such as preventing theft from a specific warehouse. Second, show necessity: the measure must serve that interest and no lighter measure is available. Third, weigh the interest against the employees’ privacy, considering how intrusive the measure is, how long it lasts and how many people it affects. Most programmes fail because the first step is skipped.

What do necessity and proportionality mean in practice?

Continuous monitoring is assessed far more strictly than periodic or sample checks. Targeted monitoring of an identified employee based on a concrete suspicion, for a limited period, is easier to justify than blanket monitoring of the whole workforce. Aggregated or pseudonymised data is usually the lighter alternative you must try first.

Monitoring may not reach areas where employees expect privacy, such as toilets, changing rooms and rest areas. Health data is a special category: an absence system may record absence dates, but a manager may not record the medical reason.

What must employees be told before monitoring starts?

Employees must be informed in advance: which data are collected, for what purpose, on which legal basis, who has access, how long the data are kept and what rights they have. Put this in a written monitoring protocol or code of conduct, not in a clause hidden in the contract.

The Data Protection Authority will usually ask for two documents first. The register of processing activities must list the monitoring. And for systematic or large-scale monitoring, you must carry out a data protection impact assessment (DPIA) before the system goes live. If the DPIA shows a high residual risk that you cannot reduce, you must consult the Data Protection Authority before you start; involve your data protection officer from the beginning.

Employees keep some confidentiality in their communications on company equipment. You may restrict or prohibit private use, but you may not simply read messages that are evidently private. See our article on whether your employer can read your emails.

When does the works council have to consent?

Under Article 27(1) WOR, you need works council consent for a regulation on the processing and protection of employees’ personal data (sub k) and for a regulation on facilities aimed at or suitable for monitoring attendance, conduct or performance (sub l). Camera plans, tracking systems, monitoring software and internet and email protocols fall under one or both.

The words “suitable for” matter: you do not have to intend to monitor performance. A security system that can produce data about individual behaviour also requires consent. Under Article 27(5) WOR, a decision taken without consent is void if the works council invokes the nullity in writing within one month after being informed of the decision or discovering that it is being applied. If the works council refuses consent, you can ask the subdistrict court (kantonrechter) for permission under Article 27(4) WOR; this is only granted if the refusal is unreasonable or the decision is required by weighty business reasons.

What are the rules for cameras, tracking, email and software?

Each technique is tested against the same three steps, but some outcomes are predictable. The more continuous and the closer to private life, the harder a measure is to justify.

• Cameras: allowed for a concrete purpose such as preventing theft or ensuring safety, with clear signs at the entrance and in the monitored areas. Not in toilets, changing rooms or rest areas. Keep footage only for a short period unless an incident must be retained, and restrict and log access. See our article on CCTV in the workplace.
• Hidden cameras: only in exceptional cases: a concrete suspicion of serious wrongdoing, no realistic alternative, limited in time and scope, and announced in general terms in advance. The criminal limit of Article 139f Sr always applies.
• Vehicle tracking: lawful for route planning, vehicle security or a statutory registration duty, if employees know. If private use is allowed, the system must allow private trips to be excluded.
• Email and internet: monitor traffic data (categories of websites, volumes) rather than content. Read content only for a concrete incident, with documented authorisation and a procedure for setting aside private messages.
• Productivity software: keystroke logging, regular screenshots and always-on webcams generally fail the necessity test.
• Social media: systematic screening of employees’ private accounts is not allowed; looking at a public post because of a concrete incident is a much narrower matter.

Can you monitor employees who work from home?

The same rules apply, but the balancing test is stricter because the workplace is a home. Constant camera or webcam observation of a homeworker is disproportionate in ordinary circumstances and also affects others in the household.

Measure output and agreed availability rather than activity, confine logging to agreed working hours, and state in the policy what is logged on company devices. See our article on working from home.

What can employees do against unlawful monitoring?

Employees can request access to their personal data, including logs, camera images and monitoring reports; the employer must in principle respond within one month. They can ask for correction, object to processing based on legitimate interest, complain to the Data Protection Authority and claim compensation for material and non-material damage.

The sharpest consequence usually arises in the employment case itself. Dutch civil procedure does not automatically exclude unlawfully obtained evidence, but the court can attach consequences, such as a higher award to the employee or a finding that the employer acted seriously culpably. An employer who monitors without a proper basis can lose a dismissal case it would otherwise have won; see our note on a summary dismissal based on monitoring data that breached the GDPR.

What should you check as an employer?

• Define in one sentence the concrete problem the monitoring must solve.
• Record why a less intrusive measure would not work.
• Carry out a DPIA for systematic or large-scale monitoring before the system goes live.
• Request works council consent under Article 27(1)(k) and (l) WOR before purchase and implementation.
• Publish a readable monitoring protocol and add the processing to your register.
• Restrict access to named roles, set short retention periods and evaluate the system after the first period.

What should you check as an employee?

• Ask for the monitoring protocol and check whether you were informed before the monitoring started.
• Ask the works council whether it consented to the system.
• Request access to the data held about you, such as logs and camera images.
• If monitoring evidence is used against you, check whether the employer had a concrete interest and tried lighter measures first.
• Note that the works council can only invoke nullity within one month under Article 27(5) WOR.

What can we do for you with employee monitoring?

Our employment lawyers work together with our privacy lawyers on monitoring files.

• We assess whether a planned monitoring measure passes the legitimate interest test.
• We draft the monitoring protocol, the DPIA and the processing agreement with the supplier.
• We prepare the consent request to the works council, or the substitute consent request to the subdistrict court.
• We advise works councils on a consent request or on invoking nullity.
• We assess monitoring evidence in a dismissal case, for employer or employee.

Summary

• Monitoring requires a concrete legitimate interest, necessity and proportionality; employee consent rarely works.
• Inform staff in advance in a written protocol and carry out a DPIA for systematic monitoring.
• Works council consent under Article 27(1) WOR is required for most monitoring systems; without it, the decision can be declared void.
• Covert filming in a non-public place and eavesdropping are criminal offences under Articles 139f and 139a Sr.
• Unlawful monitoring can undermine a dismissal case.

Frequently asked questions