Be Aware - June 2021

Can a private conversation be relied upon in court by a worker?

In a decision dated 6 November 2020¹, the Liège Labour Court examined the admissibility in court of a recording of a private conversation between a female employee and her former employer. This decision concerned a female employee in a managerial position, and a position of trust, who was dismissed by her employer. Given the nature of her position, she was, in principle, not entitled to overtime payment. However, at the end of the employment relationship, the female employee took her former employer to court in order to obtain, among other things, payment of overtime worked during the employment contract.

The employee argued that, after the termination of the employment contract, an agreement had been entered into with the employer, providing that overtime would be paid, notwithstanding the employee’s managerial position and position of trust.

To demonstrate the existence of such an agreement, the employee produced in Court a private conversation she had had with her former employer which had been recorded without the latter’s knowledge. However, the Court decided to have this recording excluded from the proceedings, on the grounds that it violated the employer’s right to privacy and his right to a fair trial.

The Court concluded that the recording was inadmissible by applying the “Antigone” case law. This allows the judge to assess the admissibility of improperly collected evidence and to only dismiss it in the following three cases²:

• where the law itself provides that, for the irregularity in question, the evidence shall be deemed null and void;
• when the irregularity committed has tainted the reliability of the evidence;
• when the use of the evidence contravenes the right to a fair trial.

In the case at hand, the Court held that the employee’s recorded conversation was inadmissible because it distorted the proceedings and disregarded the employer’s right to a fair trial. Hence, it is worth noting that even improper evidence is not automatically excluded from the proceedings by the judge, based on Antigone case law. However, it should be stressed that this case law is not systematically applied by labour courts, since some labour courts believe that irregularity of evidence is sufficient in itself to have the evidence excluded from the proceedings.

Angela Broux

Employers’ obligations under the Whistleblowing Directive

The EU Whistleblowing Directive (the Directive)³ must be transposed into Belgian law by 21 December 2021. Currently, Belgium does not have a comprehensive legal framework to protect whistleblowers and existing legislation is limited to specific themes, such as money laundering, terrorist financing, or discrimination. The EU Whistleblowing Directive goes well beyond that. According to the Directive, employers should (i) ensure the protection of whistleblowers reporting specific breaches of EU law⁴ and (i) set up internal reporting systems within their organisation⁵.

The protection provided by the Directive applies to anyone suspecting a breach in a work-related sector, be it in the private or public sector, and regardless of the individual’s employment status (contractor, employee, trainee, volunteer etc.). Additionally, the protection will apply to the whistleblower, provided he/she has reasonable grounds to believe that the matters they report are true, given the circumstances and the information available to them at the time of reporting,

The protection will moreover only apply provided the whistleblower relies on one of the following reporting channels: (i) internal reporting to the competent person(s) appointed by the employer; (ii) external reporting to the competent national or EU authority; or (iii) public disclosure, by placing the information in the public domain.

Once the protection provided under the Directive applies, employers must refrain from any retaliation acts against the whistleblower. Retaliation should be construed broadly and can include: suspension, dismissal, demotion, reduction in wages, disciplinary measure, reprimand, change in working hours, discrimination, etc.

As to the internal reporting channels that should be designed by employers, these should enable the whistleblower to report information on breaches, and⁶:

• provide for reports to be made either in writing, orally or both;
• ensure the confidentiality of the reporting person and anyone mentioned in the report;
• enable acknowledgement of receipt of a report within seven days;
• designate an impartial person/department to diligently follow up on the whistleblower’s reports;
• inform the whistleblower of the procedures for reporting externally to competent authorities or EU entities.

Employers are therefore advised to draft an appropriate whistleblowing policy and ensure that any whistleblowing reports will be processed in accordance with the principles of the EU General Data Protection Regulation 2016/679. Also, this framework will have to take into account the existing topical laws regarding whistleblowing in Belgium.

Angela Broux