Discussions between employers or supervisors and employees are often delicate. If conflicts are smouldering or have already erupted in the working relationship, they can become very verbal.
It is not uncommon for employees to reach for their smartphones and secretly record conversations with their employers or superiors that are supposed to be confidential. Why? For example, to collect “evidence” of misconduct by the employer for proceedings before the labour court.
A reason to dismiss employees without notice – or not? It depends, as a recent ruling on this issue shows.
Secret recording of conversations: Inadmissible? Punishable?
In principle, (staff) discussions between employees and their employer or supervisor are confidential. It is precisely this confidentiality that means that such conversations may not be recorded – regardless of whether they take place in person or on the telephone.
If an employee nevertheless secretly records a confidential conversation – e.g. with a smartphone – this is a serious violation of the employment contract or the duty of consideration under the employment contract. Under certain circumstances, this may even be punishable under Section 201 of the Criminal Code (StGB). The reason: secretly recording the confidentially spoken word violates the right to preserve the impartiality of the spoken word or the right to informational self-determination.
Furthermore, making secret recordings of a confidential conversation at the workplace and also using these secret recordings (e.g. in proceedings before the labour court) can be the basis for measures under labour law, e.g. for dismissal, due to a significant breach of secondary obligations under the employment contract.
It is also important to know: The use of secret telephone recordings in civil proceedings is generally not permitted, as ruled by the Stuttgart Higher Regional Court. This can be decisive in labour law proceedings, especially for employers!
Federal Labour Court (BAG) on secret audio recordings in labour law
Especially since it has become very easy to secretly make audio recordings with a smartphone in one’s pocket, labour courts are naturally also dealing with this issue. The BAG, for example, dealt with the issue in a very fundamental ruling (BAG, judgement of 19 July 2012, ref. no.: 2 AZR 989/11). The judges came to the conclusion that the secret recording of a confidential conversation in the employment relationship is in principle suitable to justify both an ordinary dismissal for conduct-related reasons and an extraordinary dismissal without notice “per se”.
It is not decisive whether the secret recording was also punishable. What is decisive is whether the breach of duty by the employee in the specific case is so serious that it justifies ordinary termination or termination without notice. The possibility of dismissal due to a secret recording of a conversation therefore depends on the circumstances of the specific individual case.
Exemplary judgements LAG Rhineland-Palatinate & LAG Hesse
Among others, the case law of the Rhineland-Palatinate Regional Labour Court (LAG) and the Hesse Regional Labour Court (LAG) shows how the case law of the BAG is implemented in individual cases.
- In a case from 2015, the Regional Labour Court of Rhineland-Palatinate confirmed the validity of the dismissal of an employee who had secretly recorded a staff meeting. In the court’s view, a warning was not necessary. (LAG Rhineland-Palatinate, Judgement of 03.02.2016, Ref.: 7 Sa 220/15).
- The Hesse Higher Labour Court (LAG Hessen) also ruled in this way in a case from 2017. Here, the court confirmed the validity of an extraordinary dismissal by the employer. The employee’s objection that he believed a recording of the conversation was not prohibited did not change the result. The fact that his smartphone was lying open on the table during the conversation did not change anything either: the man should have been informed about the recording of the conversation before it began. (LAG Hessen, Judgement of 23 August 2017, Ref.: 6 Sa 137/17)
Current ruling on secret recording: Terminations invalid!
A ruling by the Rhineland-Palatinate Higher Labour Court at the end of 2021 is different (Judgement of 19.11.2021; Ref. 2 Sa 40/21): Here, the court did not consider either the termination without notice or the alternative ordinary termination due to the secret recording of a confidential conversation at the workplace to be effective.
This was due to the special situation of the individual case: The employee’s supervisor had already insulted and discriminated against the man in the run-up to the recorded conversation. The man wanted to document this behaviour of the superior, which was to be expected again. He was not aware that he might be liable to prosecution.
And the reasons for this decision? With his misconduct, the supervisor had more or less caused the recording of the conversation himself. The employee simply did not know any other way to defend himself. The fact that the employee also did not know that this behaviour could be punishable would significantly mitigate his breach of duty.
What to do as an employer?
The current ruling of the Regional Labour Court of Rhineland-Palatinate shows: Not every secret recording of a confidential conversation in the employment relationship is necessarily a sufficient reason for termination without notice or ordinary termination!
In this respect, employers should pay very close attention to the circumstances of the individual case if a secret recording of a conversation “comes to light” or a secret recording is used as evidence, for example, in proceedings for protection against dismissal.
Because terminations can be effective in such cases, but they are not necessarily so in every case.
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