Newsletter 2024 – 04

2 Case Law – plea for the use of video interviews by the Social Inspectorate

Arbrb. Hasselt, April 9, 2024, unpublished.

A social inspector from the National Employment Office (RVA) invites an employer for an interview to explain the use of the economic unemployment scheme. The employer attends the interview without a lawyer. The inspector asks questions, to which the employer responds. The inspector records these answers in the draft minutes of the interview he or she has prepared.

Afterward, the social inspector prints the report and submits it to the employer for signature. The employer disagrees with the inspector's formulation of a specific phrase and criticizes the biased presentation. He refuses to sign the report, after which the hearing is terminated. The RVA (National Employment Office) then issues a refusal decision based on the employer's statement.

The employer challenges the refusal decision before the labor court.

One of the arguments the employer raises is that the judge should not consider the unsigned statement. The labor court disagrees with the employer on this point. It points out that the employer has not demonstrated that the content of the official report does not correspond with the statement he made. If this had been the case, according to the labor court, the social inspector would have noted this in the official report, or the employer would have immediately made his comments on the content of the statement known. The employer's persistent refusal to sign the official report clearly does not suffice as an expression of disagreement with its content. The official report can continue to serve as "information.".

The ruling sharply defines the attitude an interrogator must adopt during an interrogation. If they disagree with the written wording, simply not signing the official report is not enough. The interrogator must stand firm until the inspector amends the statement. This may seem obvious at first glance, but it largely ignores the power imbalance that exists during an interrogation. An interrogated person is in a precarious position and has no leverage to force a social inspector to amend a previously recorded statement. The formal guarantees of Article 62, paragraph 2, of the Social Penal Code ("At the end of the interrogation, the interrogated person shall be given the official report of their interrogation to read, unless they request that it be read aloud.".

He is asked whether he wishes to improve or add anything to his statements.”) does not change anything.

These problems could be avoided if interrogations were recorded. We believe it's worth experimenting to determine whether video interrogations can contribute to improved official report quality.

Anyone who has ever attended an interrogation will attest to the fact that organizing it is a very time-consuming task that severely strains the capacity of the police. Moreover, for many inspectors, it's a feat to simultaneously listen attentively to the answers to the questions posed and then immediately write them down verbatim (not to mention the situations where an interpreter is required). This often leads to reports full of awkward sentence structure, a lack of punctuation, and highly condensed sentences.

Video interrogations can also address the frequently recurring criticism that social inspectors were biased during interrogations. Using an audiovisual recording, a court can determine whether this is a gratuitous afterthought or whether the criticism is valid.

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

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

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

3 Jurisprudence – GBA – be careful when communicating about the reasons for dismissal

Decision 145/2023 of 26 October 2023 – Dispute Resolution Chamber of the Data Protection Authority (“DPA”)

A tenured physical education teacher at a university lost his temper when a student tried to read the exam scores from the teacher's computer screen behind him. The teacher slapped the student twice on the cheek with the open hand.

Despite the lecturer's apology, the university board decided to dismiss him for urgent reasons.

The school then sent three emails announcing the dismissal, stating: "This was in response to physical aggression against one of the students (...). A 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.

Initial proceedings were initiated before the disciplinary bodies. The teacher then initiated proceedings before the labor court. We will not discuss these proceedings further in this newsletter.

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

The Dispute Resolution Chamber had to assess the lawfulness of the processing up to the mention of “dismissal for urgent reasons” and the use of the term “physical aggression” (in 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 balancing test.

a. Target test

In the Dispute Resolution Chamber's view, personnel-related communications can indeed be justified – following a dismissal or prolonged absence. In this sense, communication about the dismissal – including the reason for that dismissal – of a staff member or lecturer can be justified in itself.

Communicating about a dismissal and the reason for it serves a legitimate purpose in itself. There is no indication that the communication was sent for other purposes—such as deliberately harming the complainant.

In this regard, the Dispute Resolution Chamber specifically rejected the lecturer's argument that communication at the time of the incident would be "premature." Since the dismissal was for urgent reasons, regardless of whether it was justified, there was an immediate and legitimate need to communicate the dismissal to students and colleagues.

b. Necessity test

According to the Disputes Chamber, in order to conduct this assessment, a distinction must be made between the necessity of notifying former students on the one hand, and colleagues, members of the committee, and “current” students on the other. It ruled that it can hardly be called “necessary” former students of the dismissal – let alone the reason for the dismissal – of the complainant.

informing students and colleagues about a dismissal constitutes, according to the GBA, a real and societal necessity that can be deemed relevant and legitimate.

This does not mean that the communication made was necessary.

The Dispute Resolution Chamber deemed it unnecessary to mention the "physical aggression," especially since the dismissal was being communicated. The students, colleagues, and other individuals to whom the communication was made had no current need to know the reason. "That gossip or distrust would arise from not communicating the reason for the dismissal is not, as such, the school's (social, let alone legal) responsibility.".

For the sake of completeness, the Dispute Resolution Chamber noted that the fact that such communications occur "internally" and are sent to email addresses associated with the institution is irrelevant to assessing necessity. The fact that certain events occurred in a work-related context, or that communications were sent on an "internal platform," is irrelevant to that assessment.

c. Balancing test

The Dispute Resolution Chamber decided that the school had not adequately taken into account the rights and freedoms of the teacher when sending the disputed communications.

Firstly, she found that the communications wrongly referred to a “thorough investigation”.

Secondly, the Dispute Resolution Chamber found that the initial communication failed to mention the teacher's right to appeal the school board's decision, nor the associated considerations the board took into account when deciding on the dismissal. If the school had referred to dismissal following a "thorough investigation" that established "physical aggression," it could at least have mentioned that the decision could still be appealed to an appeals body. The teacher's rights and freedoms were disproportionately harmed by the communications in light of the balancing test.

The Dispute Resolution Chamber issued a reprimand to the school.

Brief reflections

1.

Be careful when communicating about a dismissal.

When the employer discloses the reason for dismissal to third parties within or outside the organization, they must be able to justify why this is necessary. The potential for gossip or distrust arising from failure to communicate the reason for dismissal does not constitute justification.

What could constitute justification is not clarified. For example, could the risk of strikes 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 fails to comply with safety regulations) sufficient justification?

From this decision it can be inferred that when it is stated that the dismissal took place 'after a thorough investigation', the thoroughness of that investigation must also be maintained.

This decision suggests that, if an appeal is possible, it must be mentioned. The same could be said, mutatis mutandis, of the possibility for an employee to challenge a dismissal for urgent reasons in court. Whether this would also apply mutatis mutandis to a claim for manifestly unfair dismissal seems doubtful.

2.

Regarding the fact that the communication was also reaching alumni, the school had explained that it could not avoid it. Students enroll in a specific program at the beginning of the academic year and are assigned an email account by the university. This email account is only updated once a year, so students who have discontinued their studies still have access to that email address for a while. Keeping that email account up to date daily would require a significant additional burden and involve more data collection. To prevent excessive data collection, the employer may be required to collect even more data.

Dirk Heylen, lawyer
dirk.heylen@mploy.be