Newsletter 2024 – 04

2 Case law – plea for the use of a video interrogation by the social inspectorate

Arbrb. Hasselt April 9, 2024, unedited.

A social inspector from the RVA invites an employer for an interrogation to obtain explanations about the use of the economic unemployment system. The employer goes to the interrogation without a lawyer. The inspector asks the questions to which the employer answers. The inspector will record these answers in the draft interrogation report he has prepared.

Afterwards, the social inspector prints the report and submits it to the employer for signature. He does not agree with the way in which the inspector formulated a certain phrase and criticizes the tendentious presentation of matters. He refuses to sign the report, after which the interrogation is stopped. The NEO will then make a refusal decision based on the employer's statement.

The employer challenges the refusal decision before the labor court.

One of the arguments raised by the employer is that the judge may not take the unsigned statement into account. The labor court does not follow the employer on this point. She points out that the employer does not make it plausible that the contents of the official report do not correspond with the statement he made. If this had been the case, according to the labor court, the social inspector would have reported this in the report or the employer would have immediately made known his comments on the content of the statement. The employer's continued refusal to sign the report is clearly not sufficient to express his disagreement with its contents. The official report can continue to serve as “information”.

The ruling sharpens the attitude that an interrogated person must adopt during an interrogation. If he does not agree with the words written down, it is not sufficient to not sign the report. The respondent will have to stand his ground until the inspector changes the statement. This may seem obvious at first glance, but it largely makes abstraction of the power imbalance that exists during an interrogation. An interrogated person is in a precarious position and has no leverage whatsoever to force a social inspector to adjust a previously recorded statement. The formal guarantees of Article 62, second paragraph of the Social Criminal Code ("At the end of the interrogation, the person being questioned is given the report of his interrogation to read, unless he requests that it be read out to him.

He is asked if he wants to improve his statements or add anything to them.”) does not change that.

These problems can be avoided if interrogations were recorded. We think it is worth an experiment to determine whether a video interrogation can contribute to an increased quality of the official report.

Anyone who has ever been present at an interrogation will agree that organizing it is a very time-consuming activity that seriously tests the capacity of the services. Moreover, it is a feat for many inspectors to simultaneously listen attentively to the answers to the questions asked and to immediately write them down verbatim (not to mention situations in which an interpreter must intervene). This often leads to official reports full of crooked sentence structure, the absence of punctuation and highly condensed sentences.

The video interrogation can also put an end to the often recurring criticism that social inspectors have acted biased during the interrogation. On the basis of an audiovisual recording, a court can determine whether this is a gratuitous after-the-fact explanation or whether this criticism is valid.

Finally, one could argue that the Salduz regulations were created to ensure that the rights of the respondent were respected. After all, wasn't it true that it was the lawyer's job to ensure that no unacceptable pressure is exerted during the interrogation? That is undoubtedly correct, but the correct conduct of an interrogation should not depend on the presence of a lawyer.

Pending legal clarification, respondents could request social inspectors themselves to allow them to make an audio recording of their interrogation.

Steven Renette, attorney-partner
steven.renette@mploy.be

3 Jurisprudence – GBA – be careful with communication about the reasons for dismissal

Decision 145/2023 of October 26, 2023 – Disputes Chamber Data Protection Authority (“GBA”)

A (permanent) physical education teacher at a college lost his self-control when a student tried to read the exam points on the teacher's computer screen from behind his back. The teacher gave the student two slaps on the cheek with the flat of his hand.

Despite the teacher's expression of regret, the college board proceeded with dismissal for urgent reasons.

The school then sent three emails reporting the dismissal as follows: “This was due to physical aggression towards one of the students (…). Thorough investigation has shown that this incident makes any further functioning as an employee of the school impossible.” The emails were sent to colleagues and at least 195 (former) students.

Three types of procedures followed.

A first procedure was conducted before the disciplinary bodies. The teacher then initiated proceedings before the labor court. We will not discuss these procedures further in this newsletter.

A third procedure was conducted before the GBA: the teacher had filed a complaint for sending emails with personal data to (former) students and colleagues.

The dispute chamber had to assess the lawfulness of the processing up to the mention of “dismissal for urgent reason” and the use of the word “physical aggression” (in the light of the principles contained in Article 5 GDPR).

She assessed the legality on the basis of the purpose test, the necessity test and the consideration test.

a. Objective test

In the view of the Disputes Chamber, personnel-related communications can indeed be justified - following a dismissal or long-term absence. In this sense, communication regarding a dismissal – including the reason for that dismissal – of a staff member or lecturer can in itself be justified.

Communicating about a dismissal, and the reason for that dismissal, in itself pursues a legitimate goal. There is no indication that the communication was sent for other purposes - such as deliberately harming the complainant.

In particular, the Disputes Chamber expressly did not follow the teacher's reasoning that communication at the time of the facts would be "premature". Now that the dismissal took place for urgent reasons, regardless of the justified nature of that dismissal, there was an immediate and legitimate need to communicate about that dismissal to students and colleagues.

b. Necessity test

According to the Disputes Chamber, a distinction must be made in carrying out this test between the necessity of writing to former students on the one hand and colleagues, members of the committee and “current” students on the other. She ruled that it could hardly be called “necessary” to inform former students

informing students and colleagues about a dismissal represents a real and social need that can be regarded as relevant and legitimate.

That does not mean that the communication made was necessary.

The Dispute Chamber did not consider it necessary to mention “physical aggression”, especially since there was communication about a dismissal. After all, the students and colleagues and other people who were communicated to did not have any current need for that reason. “The fact that backbiting or distrust would arise due to failure to communicate the reason for dismissal (is) as such not the (social, let alone legal) responsibility of the school.”

Needless to say, the Disputes Chamber noted that the fact that such communications occur “internally” and are addressed to e-mail addresses associated with the institution is not relevant for the assessment of necessity. The fact that certain facts occurred in a work-related context, or that communications were sent on an "internal platform", is not relevant in that assessment.

c. Balancing test

The Dispute Chamber decided that the school did not adequately consider the rights and freedoms of the teacher when sending the disputed communications.

Firstly, it established that the communications incorrectly referred to a “thorough investigation”.

Secondly, the Disputes Chamber established that the initial communication did not mention the fact that the teacher could also appeal against the decision of the school board, and the related considerations that the board took into account in order to to go to dismissal. When the school mentioned a dismissal after a “thorough investigation” that found “physical aggression,” it could have at least mentioned that the decision was still subject to appeal to an appeals body. The rights and freedoms of the teacher were disproportionately damaged by the communications in light of the assessment test.

The Dispute Chamber issued a reprimand to the school.

Brief thoughts

1.

Be careful when communicating about a layoff.

When the employer communicates the reason for dismissal to third parties within or outside the organization, he must be able to justify why this is necessary. The possibility of backbiting or distrust due to failure to communicate the reason for dismissal is not justified.

What could be a justification is not clarified. For example, can the risk of strike or other actions by colleagues or actions by customers or other third parties justify the necessity? Is 'setting an example' (for example dismissal for urgent reasons because an employee does not comply with safety regulations) sufficient justification?

It can be deduced from this decision that when it is written that the dismissal took place 'after thorough investigation', the thoroughness of that investigation must also be able to stand.

It can be deduced from this decision that, if there is an appeal option, it must be stated. Mutatis mutandis, the same could be said of the possibility that the employee can challenge a dismissal for urgent reasons in court. Whether this would also apply mutatis mutandis with regard to a claim for manifestly unfair dismissal seems doubtful.

2.

The school had explained that it could not avoid this because the communication also happened to former students. Students register for a specific course at the start of an academic year and receive an email account from the college. This email file is only kept up to date once a year, so that students who have stopped their studies will still have that email address for a while. Keeping that email file up to date from day to day would require an enormous additional burden and imply more data acquisition. To prevent too much data from being kept, the employer may be obliged to collect even more data.

Dirk Heylen, lawyer
dirk.heylen@mploy.be