Autoriteit Persoonsgegevens en AVG

Vrijdag 5 januari 2018

In vervolg op mijn opiniestuk dat via meerde kanalen is gepubliceerd heb ik onderstaande brief verzonden aan de zogenaamde artikel 29 werkgroep van de samenwerkende Europese privacy toezichthouders:

Guideline on Consent in relation to sickness absence

I would like to bring the following to your attention:

My argument focuses on consent (toestemming) as the basis for processing data associated with sickness absence.

Under current legislation, the Data Protection Authority (Autoriteit Persoonsgegevens/AP) understands the relationship of authority between an employer and an employee to be of such a primary nature that the employee is in fact unable to exercise free will because of this relationship. I refer in this matter to the DPA's guideline on handling data in the case of a sick employee:

“Given the relationship of authority, one cannot rule out the possibility that an employee, in view of the employment relationship with the employer, feels forced to give his consent, and is therefore unable to freely express his will.”

In my opinion, this is a flawed approach that does not do justice to Dutch employer-employee relationships for several reasons: 

  • In other relevant legislation, specifically the Eligibility for Permanent Invalidity Benefit (Restrictions) Act (Wet Verbetering Poortwachter/WVP), the relationship between the employer and the employee is assumed to be such that consensus must be reached about the approach to reintegration in the form of a mutually agreed Action Plan, evaluations and, if necessary, adjustments, subject to penalties.
  • If the parties are unable to reach agreement, the Act makes provision for an independent expert opinion.
  • Pursuant to working conditions legislation, the employer must enter into a contract with a certified occupational health service or certified occupational physician.
  • According to working conditions legislation, the employee has free access to the occupational physician.
  • Also according to working conditions legislation, the employee is entitled to a second opinion in the event of a disagreement with the occupational physician in question.
  • The reintegration efforts are independently assessed by the UWV if reintegration does not take place optimally (i.e. a full return to the previous position) within a period of 2 years, subject to a wage-related penalty for the employer.
  • The employee is protected against dismissal by a ban on termination of employment during the above-mentioned period.
  • If, in spite of this, the employment relationship is terminated, the employee is entitled to a transition allowance.
  • Furthermore, if the employee does not agree with the dismissal decision, he can challenge it in court.

My proposal is to apply the principles of the Eligibility for Permanent Invalidity Benefit (Restrictions) Act (Wet Verbetering Poortwachter/WVP) to sickness absence as well and assume an emancipated relationship between the employer and employee, where the relationship of authority is not considered to stand in the way of expressing free will.

Nico van Hemmen

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