The Vagaries of Remote Working – A Global Perspective

My previous article extolled the virtues and benefits of remote working. This week’s article provides a cautionary note to both employer and employee regarding the ever-changing global landscape of remote working.

Recently, a Dutch employee working remotely for a company headquartered in the USA was fired after refusing to leave his webcam on whilst ‘attending’ a virtual training programme, ironically titled, Corrective Action Programme.

The employee was required to remain logged in with his computer camera and screen share on for the duration of the one-day training course. The employee ignored the request, was fired, and found himself unemployed. The reasons cited by his employer for his dismissal were ‘refusal to work’ and insubordination.

The employee countered that he had refused to have his webcam on because he felt that it was an invasion of his privacy. He argued that he had shared his screen, so the company was able to monitor his work by means of this platform.

Weeks after having his employment contract terminated, the now ex-employee took his ex-employer to a labour court in the Netherlands, claiming that he had been unfairly dismissed.

His legal team argued that the dismissal was not legally valid and that the employer’s decision to terminate their agreement with the employee was not clear. They argued that the employee was indeed working on the day in question and that the employer had been in a position to observe exactly what the employee was doing, as he had shared his screen the entire day.

In their response, the company said that having a webcam on all day was no different to having been physically present at an office where a supervisor or manager could ‘watch’ an employee at any given time.

The court, however, disagreed and cited Article 8 of the European Convention on Human Rights which states, inter alia, "Strict conditions are attached to observing employees". In its ruling, the court referred to a 2017 case where the European Court of Human Rights had said, "Video surveillance of an employee in the workplace, be it covert or not, must be considered as a considerable intrusion into the employee's private life."

In this particular instance, the court in the Netherlands agreed with the employee. The court ruled that his former company had to pay him €75,000 (R1,3 million), which included his unpaid salary and his holiday allowance.

Labour experts said, however, that had the employee worked anywhere else in the world, like in the US for example, he would most likely have lost his case as some countries’ labour laws did not protect employees to the same extent as some European countries did.

The moral of the story is, of course, for employers employing people on a remote work basis to fully acquaint themselves with their legal and constitutional rights in respect of remote working and to operate within the framework of both. Remote work employees would be well advised to do likewise.

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