It is becoming increasingly common for employees in the Netherlands to record the smartphone conversations they have with their employers in order to collect evidence, exert some pressure, or for use in court proceedings, including for dismissal. That is what had happened in a court case at the end of October in the Sub-District Court of Alkmaar.

The case

The hotel and conference centre employer applied to the Sub-District Court for consent to terminate the employment contract of a chef following (among other matters) a difference of opinion on whether to record a meeting about his attitude and performance. The court terminated the chef's employment contract, although it did not find his actions to be seriously culpable. Employees are entitled to record a conversation with their employer without prior consent, provided they confirm, when asked, that they are recording the conversation. The chef appeared to have done so in this case.

Here are some principles we have taken from the law and case law on this topic.

Not criminal

In terms of the Dutch Criminal Code, it is in principle permissible to record a conversation even where the other conversation partner is unaware that the conversation is being recorded. The party making the recording must be personally involved in the conversation, however, or else the conversation has to be recorded on the instructions of one of the individuals taking part in it.

No breach of privacy

A tape recording of a conversation is covered by the definition of personal data processing under the GDPR. In proceedings regarding evidence or dismissal, the employee may rely on the representation of their legitimate interests for this processing, provided that those interests outweigh the employer’s interests (including its privacy interests).

Recording may be used as evidence

Civil courts will virtually always admit an audio recording or transcript as evidence. This is because, in principle, the importance of establishing the truth outweighs the interest in excluding evidence. Courts will only exclude the evidence if there has been a "legally impermissible breach of privacy" affecting the individual who has been recorded. This is not readily the case, as conversations between employers and employees often deal with matters of business. For that matter, if an employee has recorded a conversation but then only uses parts of it in court proceedings, the employer is entitled to demand a copy of the complete audio recording.

Recordings often lead to dismissal

Employees should appreciate that using such recordings can also impact them negatively. For instance, a court might draw the conclusion that the employment relationship was "seriously and permanently" disrupted and then go on to dissolve the employment contract, as can be seen in an earlier ruling by the ’s-Hertogenbosch Court of Appeal.

A court will not find that a seriously culpable act has been committed if it is made clear that the employee recorded conversations because of the situation they were in.

Some tips for employers

• be aware that conversations are regularly recorded;
• if in doubt, ask whether the employee is recording the conversation, since the employee is not under any obligation to volunteer this information;
• tell the employee that if they are not telling the truth about whether they are recording, this will be a seriously culpable act that might lead to dismissal;
• before a recording starts, let the employee know that the recording is a breach of privacy for whoever else is taking part in the conversation;
• also let the employee know that recording conversations is regarded as undesirable from the perspective of the company's open business culture;
• point out to the employee that if they make a recording anyway and use it at some later point, then all of the recording has to be used and not just parts of it.