NL: Can an employee secretly record conversations with his employer?

 

Secretly recording conversations has become easier and more common, also in the workplace. In a recent judgment of the  District Court of Noord Holland , there was a dispute over, among other things, an orally promised profit-sharing. The employer, a construction company, denied that the profit-sharing was promised. However, the employee had secretly recorded the conversation with his General Manager in which the commitment was made. This inclusion ultimately led to an allocation of at least €486,000 in profit-sharing.

But can an employee just record conversations with the employer? And can a (transcription of a) secretly recorded conversation be used as evidence in court proceedings?

Punishable?
Secretly recording a conversation is not punishable, provided that the person recording the conversation takes part in the conversation. From a criminal point of view, an employee does not always have to request permission to record a conversation with his employer, or to report the recording in advance.

Illegal?
Secretly recording is therefore not always punishable, but can also beillegal. The recording could, for example, lead to a violation of the privacy of the participants in the conversation. However, case law shows that illegality in an employment law and business context does not easily arise.

For example, in a judgment of the  Noord-Holland District Court , the judge ruled that the secret recordings by the employee of conversations with the absenteeism supervisor were not unlawful because it concerned a business conversation. In addition, the judge ruled that recording the conversations could serve a legitimate purpose and was a suitable means for that purpose. This is because the employee had always had discussions with her employer about the nature and content of previous telephone conversations and wanted to prevent a repetition of these. The history and further context can therefore also play a role.

In a case at the  Amsterdam District Court , the employee secretly recorded conversations between himself and the director. Shortly before the hearing, the employee had submitted a transcript of short excerpts of conversations between him and the director as evidence. In this case too, the judge ruled that there was no impermissible infringement of the director's privacy, because the conversations were mainly of a business nature. The fact that the director did not have to expect that the conversations would be recorded did not change this. However, the judge awarded a lower compensation (under the old law) because the employee had contributed to the escalation that had arisen through the admissions.

In a case submitted to the  Court of Appeal of 's-Hertogenboschan employee secretly recorded conversations where he himself was and was not present. The Court of Appeal ruled that the conversations in which the employee was not personally involved had been seriously infringed on the privacy of those involved; not surprising now that in that case there was even talk of a criminal act. With regard to the conversations during which the employee was present, the Court considered that the employee should not have secretly recorded these conversations either, but that it was understandable that he had done so: the employee rightly suspected that the conversation (on least taken) would become very unpleasant for him.The direct reason for the recording also played an important role here.

The  Arnhem-Leeuwarden Court of Appeal was again a lot stricter in a person and family law case: in general the Court of Appeal considered that anyone who wants to make an audio recording of a conversation must request permission in advance from all participants in the conversation and that a conversation recording made secretly is therefore in principlewas obtained unlawfully. This case concerned recordings in which youth care agencies were involved: in such cases, according to the Court of Appeal, secret recordings should be treated with caution, because this is not in line with transparency and trust.The businesslike nature of conversations held about or in the context of the employment contract – whether or not in combination with a reasonable reason for the secret recording – can therefore make this different,

Wrongful recording still valid proof?
Can (a transcript of) a secretly recorded conversation by an employee, which must be regarded as illegally obtained, still serve as evidence in a procedure? The Supreme Courthas ruled that even if evidence has been obtained unlawfully, this does not automatically mean that the court may not take it into account. In many cases, the importance of finding the truth and the interest of the parties in making their statements plausible outweigh the importance of excluding evidence. In short, even if the recording is unlawful, the court can still admit it as evidence.

Dismissal? After all, not unlawful does not make “decent”
Finally, it should be noted that the fact that a secret recording is not regarded as unlawful does not mean that it cannot have negative consequences for an employee.

In general, a good employee can be expected to state that he will record a conversation, for example, the  Midden-Nederland District Court ruled . Also in an employment relationship, participants in the conversation must be able to speak freely, without having to take into account that sound recordings are being made. The fact that the employee in this case had difficulty reconstructing the conversation afterwards due to health reasons did not detract from this. The  Gelderland District Court also labeled the secret recording of conversations by an employee as "extremely indecent". In a recent decision of the  District Court of The Hague the judge considered that making recordings by an employee with the aim of better reflecting on his position afterwards is not in itself culpable. However, the judge found it culpable that the employee had done so secretly , and moreover not once, but eight times , and then made the recordings public . The  Noord-Holland District Court was again somewhat more lenient and ruled more generally that an employee is, in principle, entitled to record a conversation with his employer without prior permission, provided the employee confirms, on request, that he is recording the conversation.

In several statements, secretly recording conversations eventually led to the termination of the employment contract. For example, in the aforementioned decision of the  District Court of The Hague , the employment contract was dissolved on the basis of culpable acts on the part of the employee: “ She could and should have realized that this would seriously damage TU Delft's confidence in her as an employee. In doing so, she acted in breach of her obligation to behave as a good employee.Also by submitting confidential correspondence not addressed to it in the proceedings before the subdistrict court and the Court of Appeal, [defendant] is violating the confidentiality of that correspondence and is acting in violation of the obligations arising from good employment practices. Within the meaning of Section 7:669 of the Dutch Civil Code, this course of events results in culpable acts on the part of [defendant] ”. In addition, the employment relationship was irreparably and permanently disrupted.Also in another decision of the District Court of The Haguethe employment contract was dissolved on the basis of a permanently disrupted employment relationship: when it became clear that recordings had been made secretly, it was no longer possible to continue the employment. An unworkable situation had arisen for the employer. when it became clear that recordings had been made secretly, it was no longer possible to continue the employment. An unworkable situation had arisen for the employer. when it became clear that recordings had been made secretly, it was no longer possible to continue the employment. An unworkable situation had arisen for the employer.

Conclusions
In employment law, secretly recording a conversation by an employee with his employer is not easily regarded as unlawful. It is also not punishable, provided the employee himself participates in the conversation. As it turns out, employees can afford a lot, especially if the conversation has a business character and the employee has good reasons for recording the conversation.

The foregoing does not alter the fact that secretly making recordings will quickly lead to a (further) disruption of the employment relationship. Moreover, case law shows that judges often find secretly recording conversations “not appropriate”, so that sometimes it is even judged that the employee has acted culpably.

Finally, it appears that secret recordings can be used as evidence in employment law proceedings, even when the recording was obtained illegally. Employers should therefore be well aware that secretly recording conversations by employees is becoming increasingly common and that such recording can have far-reaching (financial) consequences. This is evident from the statement mentioned in the introduction.

 

For further information, please contact:

Ron Andriessen, Partner

Labré advocaten, Amsterdam

e:  ron.andriessen@labre.nl

t:  +31 20 3052030

 

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