The Brussels Labour Court rejects evidence on the basis of an employee's entitlement to a "reasonable expectation" of privacy

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Date:
30 Jun 2011

<p>A managing director, accompanied by a union representative, breaks open the locked closet of a cleaner, without her knowledge, and notes the presence of objects belonging to the company inside. Informed of this observation, the employee admits that she had put the objects inside the locker.</p>

A managing director, accompanied by a union representative, breaks open the locked closet of a cleaner, without her knowledge, and notes the presence of objects belonging to the company inside. Informed of this observation, the employee admits that she had put the objects inside the locker.

In its judgement of 2 May 2011, the Brussels Labour Court stated that these observations cannot be used in court as the privacy of the employee was invaded and such privacy is protected by Article 22 of the Constitution and Article 8 of European Convention of Human Rights, directly applicable to parties of an employment contract.

In its judgement of 2 May 2011, the Brussels Labour Court stated that these observations cannot be used in court as the privacy of the employee was invaded and such privacy is protected by Article 22 of the Constitution and Article 8 of European Convention of Human Rights, directly applicable to parties of an employment contract.

To arrive at this conclusion, the Court has on the one hand made a proportionality assessment between the legitimate interest of the employer to investigate the disappearance of objects and the right of the employee concerned to privacy. It concluded that the means used were disproportionate since it would have been less prejudicial to privacy to request the cleaner to open her locked closet by herself in the presence of witnesses.

On the other hand, the Court uses the criteria of 'reasonable expectations' developed by the Supreme Court in 2008 in a new manner. The Court notes in this regard that the employee having a closet which is locked could reasonably expect that nobody has access to it.

Unlawfully acquired evidence may however be admitted, to the extent that the unlawfulness does not affect the credibility of the evidence or the fairness of the trial. This principle is recognized in criminal matters ('Antigone' jurisprudence). Without having taken a position on its applicability in a civil litigation, which is controversial, the Court considers that in this case the invasion of privacy committed by the employer taints the credibility of the evidence brought by the testimonies of the director and the union representative, collected some years after the facts. Therefore, the Court rejected the evidence and also the admissions of the cleaner because these were obtained in an irregular manner.