May an employee record a labor dispute conversation with the employer to use as evidence and what are the consequences? As a lawyer labor law Amsterdam, we provide advice to employers and employees in labor disputes.
Recorded telephone conversations with employer
On February 27, 2013, the Noord-Holland District Court ruled that telephone conversations recorded by an employee with the employer in proceedings count as evidence. The employee’s lawyer had requested the subdistrict court itself to dissolve the employment contract with the employer for important reasons. In support of the request, the employee’s lawyer had submitted recordings and transcripts of telephone conversations she had with the absentee supervisor.
Business telephone conversation between an employer and an employee
The employer was not aware that telephone conversations with the employee were being recorded. The subdistrict court found no basis for deeming those recordings unlawful and disregarding them in this case because they were a business telephone conversation between an employer and an employee.
Recording a conversation in a labor dispute: legitimate purpose and proportionate
Furthermore, the subdistrict court held that
- Recording the conversations could serve a legitimate purpose
- and was an appropriate means to that end,
‘since the employee has undisputedly stated that she had repeatedly had discussions with the employer about the nature and content of earlier telephone conversations and wanted to prevent their repetition. In view of this, the intrusion on the privacy of the employer and Ms. [X1] was also not disproportionate in relation to the employee’s legitimate interest. In light of the foregoing, the Subdistrict Court finally considered that the interest of finding out the truth outweighed the aforementioned interests of the employer’.
Severance pay in case of culpable conduct
Record employment conflict conversation: The subdistrict court concluded that the dissolution was largely attributable to the employer. The severance payment was determined according to the Recommendations of the Circle of Subdistrict Courts. The employer’s defense that it had no money to pay any compensation was rejected.
Telephone conversation as evidence in court case
The employee’s lawyer was able to prove through recorded telephone conversations that the employer handled the reintegration completely incorrectly. The judge will usually allow the use of such conversations in civil proceedings. In criminal law it is different.
This gives the employee a strong means of proof if it turns out that the employer did not follow the rules. The severance pay seems very high, but is less than it seems: € 2,700.00 gross, because the employee earned relatively little and was employed for a short time. Nowadays, the transition compensation and fair compensation apply in this type of case.
Consequence of recording conversation with employer: lasting disruption of employment relationship
Nevertheless, the surreptitious recording of conversations with an employer can have consequences for the continuation of the employment contract.
Mutual trust between employer and employee
Rotterdam District Court ruled on February 7, 2018 that an employee had been recording conversations for a year and a half to gather information for a possible lawsuit. The subdistrict court held that the employee had done nothing wrong in the criminal sense, but that as a result the mutual trust between employer and employee had disappeared. Employee had shown by his conduct that he had not trusted his employer for a long time. It has also been established that the employee used the recorded conversations as a “threat”.
Dissolution of employment contract due to disrupted working relationship
As a result, there was no longer any confidence in a fruitful continuation of the employment contract. It was therefore concluded that there was a serious and lasting disruption of the employment relationship. The employment contract was dissolved.
Disciplinary measures and integrity
By recording conversations, the employee therefore runs the risk that the employer may take disciplinary measures, or request the subdistrict court to dissolve the employment contract due to a disrupted working relationship. As dismissal lawyers, we are increasingly finding that judges disapprove of recording conversations and are quick to find cause to conclude that the employment relationship has been disturbed to the point that the judge will terminate it. This is especially true for civil servants, in whom there are generally higher standards of integrity.
Employment dispute conversation recording by employer and AVG
It also sometimes happens that an employer records conversations. In general, the absence of the employee’s consent does not always mean that an employer is thereby unlawfully processing personal data. The employer must then prove that there is sufficient justification for a sound recording. In a case of a complaint of transgressive behavior by an employee, which is the subject of an investigation, such a justification may exist. The protection of third parties then justifies an invasion of the employee’s privacy (ECHR).
Dutch criminal law: recording conversations in which you as an employee are not a participant yourself
Please note that under Article 139a of the Penal Code, the (surreptitious) recording of conversations in which you, as an employee, are not a participant, can result in a prison sentence of up to 6 months.
Contact employment lawyer in Amsterdam about recording conversations with employer
Our Dutch lawyer labor law in Amsterdam mr. Snijders gives legal advice to employers and employees on recording (telephone) conversations in the employment relationship.