De privacybescherming van de zieke werknemer

Abstract

When the public-law Sickness Benefits Act (Dutch Ziektewet) was privatised, this created the question of how to protect sick employees’ privacy in their labour-law relationship. It is now the employers' responsibility to carry out the labour-law scheme governing sickness, which is part of Title 7:10 of the Dutch Civil Code (Dutch Burgerlijk Wetboek). These new rules have caused tension in labour-law relations, since the instructions and measures issued by the employer may affect employees’ personal lives, thus restricting their fundamental right to privacy which follows from the Dutch Constitution and human rights treaties. Regulations should offer sick employees sufficient protection against the employer and any other parties who might violate their rights while executing the rules. Effective instruments should be available to act against violations. This thesis focuses on the question to what extent the privacy of sick employees is sufficiently protected by existing regulations. In order to answer this question, this thesis develops a normative assessment method. This method is necessary to answer the question of when the protection of privacy is ‘sufficient’. This method is based on the regulations and case law concerning the right to privacy. The result of the thesis is that on a large number of points, the execution of the legal scheme governing sickness meets the criteria concerning privacy protection. Violations are only committed on the basis of the legal powers granted by law to the employer and experts. The legislator has laid down additional rules regarding the provision of information as part of reintegration processes. Moreover, guarantees are in place to ensure confidential treatment of medical information. The relevant rules are based on the assumption that employers must not receive any medical information. Medical information is processed only by medical experts who are bound by medical professional secrecy. The medical profession has itself set very clear rules outlining which information can be provided to which party in the execution of the regulations governing sickness, this in order to guarantee medical secrecy. However, the analysis has also shown that on several other points the execution of the rules fails to meet the normative criteria, and where there is thus no sufficient protection of privacy. The answer to the research question is that in several respects legislation fails to meet some of the important criteria of privacy. The possible solutions consist of additions to or clarifications of several aspects of the law and regulations. The concluding chapter describes which legal provisions should be expanded or clarified and how. It would also be necessary to tighten the rules of the medical profession on some points, something which will be up to the professional medical organisations. In addition, the courts have an important role in offering the employee legal protection. This thesis makes also several recommendations regarding how courts can protect privacy.