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"Discovery" in employment cases


The case in question

A former employee sought around EUR 400,000 for compensation for damages from Agens De Werkende Kracht B.V. (“Agens”) and UWV (the Employee Insurance Agency). At UWV’s instruction, Agens had reintegrated the employee as a fireman at one of G4S’s legal predecessors. The employee became disabled, and his employment contract with Agens was terminated after two years of illness. The employee alleged that the position of fireman was far too difficult for him and that he should never have been reintegrated into that position. On appeal, the Court of Appeal in Den Bosch, the Netherlands, ruled in an interlocutory judgment that the employee was not expected to return to the workforce.

In preparation for its defence on appeal, Agens asked in preliminary relief proceedings for G4S to provide it with a copy of a substantial number of documents pursuant to section 843a of the Dutch Code of Civil Procedure (“DCCP”), including all documents pertaining to the employee’s disability, such as the reports by the company doctor. G4S resisted this, invoking the confidentiality obligation under section 12 of the Dutch Personal Data Protection Act (“DPDPA”).

The production obligation under Section 843a DCCP

If an employer or employee is faced with an evidential problem in a legal action, the production obligation may offer a solution. As well as the case mentioned above, other situations might include a putative breach of a non-competition clause by a former employee.

Under section 843a DCCP, the party with a “legitimate interest” may seek to inspect or obtain copies or extracts of certain records which concern a legal relationship to which the claimant is a party and which its counterparty or a third party, such as G4S here, possesses.

The claimant must limit its claim, however; it cannot go on a “fishing expedition”. Thus, a former employee may not seek limitless inspection of his/her old business e-mail account. The employee must at a minimum indicate what he/she believes this search action will precisely (or more or less) uncover. The documents, of course, must also be relevant to the claimant’s claim or defence.

Exception under section 843a(4) DCCP

A party possessing documents need not furnish copies of these if there are compelling reasons for not doing so or if this is not necessary for the proper adjudication of the case (Section 843a(4) DCCP). The Preliminary Relief Judge in Rotterdam, the Netherlands, interpreted G4S’s invocation of Section 12 DPDPA as an invocation of this exception.

The protection of personal data, the Preliminary Relief Judge stated, is not an absolute right, however, so that the DPDPA does not in principle preclude enforcement of the production obligation. Moreover, it is established case law that a statutory confidentiality obligation only constitutes a compelling reason if the interests to which that obligation relates carry more weight than the compelling societal interest in the truth being revealed.

Taking the interests into account, the Preliminary Relief Judge nonetheless denied Agens’s claim insofar as it pertained to the confidential medical information. This ruling seems to have primarily been prompted by the fact that Agens had brought its claim in preliminary relief proceedings against G4S, and not the employee himself, so that he could not put forward any defence.

In addition, it makes sense for the employee (current or former) to pay attention to the question whether other sufficient relief might be ordered to protect the employee's interests. This brings to mind, for example, a situation in which the records have not been directly provided to the current or former employee, but to an independent third party, which reports on these and avoids looking at the irrelevant medical or other information as much as possible.

Hence, if confidential medical information is involved, the claim under Section 843a DCCP should, it seems, preferably be instituted against the party to whom the information pertains (at least if that party also possesses the documents). Further, the Dutch Supreme Court recently affirmed that this claim may be lodged in preliminary relief proceedings, too, if proceedings on the merits are already pending between the parties. Agens thus did not have to resort to the action pending before the Court of Appeal.


Stephanie Dekker