Rhiannon Woolford – Deputy Editor in Chief
Can the pressure employers apply to their workforce to keep their camera on be considered an infringement of the right to privacy in the absence of an explicit webcam on policy?
The effect of the Covid-19 pandemic on the way we work has been truly unprecedented. In May 2022, over 2 years since the initial outbreak of the pandemic, 24% of workers in the UK are engaged in hybrid working while 14% are exclusively working from home. While numerous advantages to working from home exist for employees, there are still concerns regarding how to navigate the divide between personal and professional when the home becomes the office. Across Europe, this dilemma is being framed as a human rights issue.
A Dutch employee recently took his concerns to court after his employer, Florida based software developer Chetu Inc., demanded that he keep his webcam on for the whole 9 hour workday as well as enabling screen-sharing. This was part of a virtual training programme labelled by Chetu Inc. as “Corrective Action.” After declining to keep his webcam on, the employee had his contract terminated for “refusal to work,” despite him being willing to continue to share his screen. The employee consequently brought the case to the Zeeland-West Brabant court in Tilburg arguing that his dismissal was unjustified and disproportionate, with the webcam on policy contravening data privacy rules. The Court agreed with him, citing Article 8 of the European Convention on Human Rights: “everyone has the right to respect for his private and family life, his home and his correspondence.” In addition, the employee was awarded (euro)75,000 in damages.
ECHR legal precedent backs this decision, in Antović and Mirković v. Montenegro, that “video surveillance of employees at their workplace, whether covert or not, constituted a considerable intrusion into their private life.” As post-Covid employment now entails the workplace being a private residence for a significant minority of the workforce, the principles of Antovic and Mirkovic v Montenegro can be applied to webcam on policies; just because the primary workplace for employees has shifted from the office to the home does not mean that employers have a right to violate privacy.
This result sets an important precedent as we look to the post-Covid future of employment. The statistics above demonstrate that home working is here to stay, whether in a full time or hybrid capacity, and therefore it is vital that courts continue to protect employees human rights when the line between home and work becomes blurry. When it comes to labour laws, the EU is already one of the most progressive blocs in the world and this case proves the commitment of their nations to continue to uphold these standards as they navigate the ‘new normal’ office space.
Yet, there is still significant cause for concern when it comes to protecting the right to privacy while working from home owing to the stigma around home working driven by employers’ belief that employees are less productive when working from home. This results in a phenomenon dubbed by some as ‘the Work From Home Guilt’; whereby employees work longer hours and take on more responsibilities than they would in the office to combat the stigma and justify their place in the company. In reality, employees are actually up to 13% more productive from home. Despite this, the ‘Work from Home Guilt’ can result in employees feeling pressured into keeping their webcam on.
While many employers may not explicitly create a webcam on policy, informal pressure arising from stigma around home working can result in employees feeling like they don’t have a choice but to keep their webcam on in an effort to prove their attendance at work and productivity. Here a grey area arises, can the pressure employers apply to their workforce to keep their camera on be considered an infringement of the right to privacy in the absence of an explicit webcam on policy? Arguably, yes. Due to the difficulties for an employee to provide evidence in a case like this, citing informal pressure to keep a webcam on would be significantly more difficult for a plaintiff to win than the case against Chetu Inc. where the organisation’s policies were clearly defined. Here, there is clear potential for the coercive abuse of an employee’s right to privacy.
The case brought to the Dutch court will undoubtedly not be the only case to cite human rights violations in an employer vs home-working employee case; it is only the beginning. As employees settle into the prospect of permanent working from home and begin to critically assess and challenge policies put in place at the height of the pandemic more cases will arise. It is therefore critical that employers begin to review their attitudes and policies to home working now; while emergency and hurried home working measures were accepted and unchallenged in the beginning of the pandemic, this case has proven that the courts are no longer prepared to let employers violate the rights of their employees.