Employees’ covert audio recordings of conversations with employer

The Danish Supreme Court has held it was not justified to summarily dismiss an employee with retroactive effect when the employer found he had covertly recorded a conversation with a manager.

nvi_portraetter_done_008_web.jpg

In this case, the Danish Supreme Court had to decide whether an employee's secret audio recording of a conversation with his employer could be regarded as a material breach of the employment relationship and justify summary dismissal.

The case concerned a customer advisor who disagreed with his employer about his right to commission. The disagreement culminated at a meeting in which the customer advisor and his manager argued, ending with the customer advisor throwing a computer mouse across the room.

The customer advisor left the workplace after a few hours, and the following day the employer informed him that the fact that he had left the workplace meant he had resigned with immediate effect. When the customer advisor did not agree, he was dismissed summarily on the grounds that he had left the workplace without authorisation. The customer advisor did not believe that the summary dismissal was justified and brought an action against the employer.

In connection with the case in the district court, it emerged that the customer advisor had recorded the conversation with the manager. This led to the employer summarily dismissing him effective from the date of the interview on the grounds of the recording.

The district court and the high court found in favour of the employer, the latter on the ground that the customer advisor's audio recording, which was made without the manager’s knowledge, constituted such a material breach of the duty of loyalty in the employment relationship that the dismissal was justified. The high court also held that the summary dismissal should be effective from the date of the recording.

Supreme Court findings: The actual audio recording did not constitute a breach of the employment relationship
The Supreme Court initially stated that the assessment of whether an employee's secret audio recording of a conversation with his/her employer constitutes a breach of the terms of employment is based on “a specific assessment of the interests of the employee vis-à-vis the interests of the employer and other parties concerned.” The Supreme Court then stated that it is not possible to give an exhaustive list of the criteria for this assessment. Emphasis must e.g. be placed on the purpose of and background to the audio recording, including whether there is a special opportunity for the employee to secure evidence that the employer was violating the employee's rights. In addition, what information the employee intended to record should be taken into account, including whether the information is about purely private matters or information that “should be confidential for the sake of the company or others”.

During the hearing before the Supreme Court, the customer advisor e.g. claimed that he had made the recording of the meeting with the manager solely for his own use in order to have a record of what was said during the conversation. The meeting occurred so spontaneously that the customer advisor had not had the opportunity to bring someone to the meeting to document it.

The Supreme Court found that the purpose and background of the audio recording, its contents and the customer advisor's subsequent use of it was justified for objective reasons and that the interests of the manager and other employees did not outweigh this interest. Therefore, the Supreme Court found that there was no basis for dismissing the customer advisor with or without notice on grounds related to the covert audio recording.

Norrbom Vinding notes

  • that the Supreme Court's judgment does not change the fact that an employee's covert audio recording of an interview with his/her employer and/or subsequent retention and use of such a recording can constitute material breach of the employment relationship, but this will be appraised based on a concrete assessment of the balance between the employee's interests, the employer's interests and others affected;
  • that the Supreme Court – unlike the high court – does not immediately appear to attach any importance to the employee's duty of loyalty, which is surprising, but this can probably be attributed to the special circumstances of the case; and
  • that, notwithstanding the above, judgment does not change the fact that, based on the rights of management, an employer can always set the framework for how meetings, service interviews, disciplinary meetings and other encounters must take place and it is therefore up to the employer to decide whether employees should be allowed to record interviews.

The content of the above is not, and should not be a substitute for legal advice.

More about the subject