How to legally communicate a dismissal correctly - The delicate balancing exercise between company and employee interests

In a decision dated 26 October 2023, the Data Protection Authority (BE DPA) sets out the principles relating to communicating dismissal for serious cause.

The DPA has condemned a college for wrongfully communicating about the dismissal of one of its professors following a physical accident.

Dismissal for serious cause after a physical accident

A college dismissed one of its lecturers after a physical accident involving one of its students. The college’s board decided to communicate this to its staff and the lecturer’s students. As ex-students’ mailboxes are only closed in the following academic year, a number of ex-students also received the communication in question. In total, at least 195 (former) students received the notice.

The board communicated the dismissal in the following terms:

“This is in response to the physical aggression towards one of the students […], a thorough investigation has shown that this incident makes any further function of [name of the lecturer] as an employee of [name of the college] impossible”. This finally made the lecturer file a complaint before the DPA.

The DPA ruled that the communication was unlawful and reprimanded the college. In its decision, it distinguished between communications to current lecturers and students on the one hand, and former students on the other hand. In both cases, it carried out the three-step test necessary to invoke the justification of legitimate interest:

1. The purpose test. Firstly, the DPA confirmed that the mere fact that the lecturer was dismissed with immediate effect is sufficient to establish that there is an immediate and legitimate need to communicate about the dismissal to students and colleagues. This is independent of any dispute concerning the serious cause.
2. The necessity test. The DPA ruled that the communication is not necessary to the extent that it is addressed to former students and identifies an infringement. In doing so, the DPA also confirmed the need to keep students’ accounts and associated mailboxes constantly up to date. 
   The DPA considers a communication was appropriate to current student and colleagues, but without the need to communicate the specific reason for dismissal, namely, the “physical aggression”. It considers that no current need was put forward by the college. The DPA explicitly states that fear of backbiting or mistrust is not sufficient. However, the DPA also does not exclude that there may be situations where there is a need to disclose the reason for dismissal.
3. The balancing test. Finally, the DPA states that the balancing test was not respected. Indeed, the college claimed in its communication that the decision to dismiss was taken only after “thorough investigation”, while it turned out afterwards that this was not the case. In addition, the college also did not mention in its communication that the lecturer could still lodge an appeal before the internal appeal organ.

Consequently, there was no legitimate communication, and the college was reprimanded. 

Previous decisions on communication on a departure from the place of employment

This is not the first time that the DPA has ruled on this issue. In general, the DPA consistently confirms that communicating about a departure from the place of employment is allowed and is within the scope of the execution of the (employment) agreement. In its decisions, the DPA shows what the margins of such communication are.

In a decision dated 1 June 2021 (63/2021), the DPA ruled that is not necessary to communicate the circumstances prior to a dismissal, such as the number of warnings or occurrence of corrective interviews. Read more about that in this newsflash.

On 19 July 2022 (115/2022), the DPA warned an employer after it announced the departure of an employee without legal basis, and thereby disclosed details concerning her health.

Earlier this year, we published this newsflash about a public institution that communicated on its intranet about the dismissal of an employee, stating that it was with immediate effect and at the initiative of the employer. In this case, the DPA ruled that it is not necessary to state in the communication that the dismissal was with immediate effect, nor who the initiating party was. Such information is disproportionate.

Finally, in a decision of 1 June 2023 (63/2023), the DPA similarly ruled that given the principle of minimal data processing, it was not necessary to disclose the reason for the dismissal. In that case, the employer had indicated in the communication that employees were dismissed for serious cause.

Attention points when communicating about dismissal

The principle has not changed over the years: limit yourself to the essentials. Until now, the DPA has always ruled that it is not necessary to communicate prior circumstances, health details, the initiating party, the immediate effect, and that the dismissal was due to serious cause. The decision under discussion in this newsflash reaffirms this.

However, in our opinion, this does not exclude the possibility that it may exceptionally still be possible to explain the reason for the dismissal. This will depend entirely on the concrete circumstances of the dismissal and the situation within the company. Based on the DPA’s previous decisions, it is clear that the threshold is particularly high.