Secretly recording personnel interviews: risk of dismissal without notice!
Since almost everyone has a smartphone these days, anyone can secretly record conversations using its recording function. Sometimes this also happens in personnel discussions. Clients tell legal advisors more often than might be expected that certain content of personnel discussions can be easily verified because there is a corresponding audio recording. The necessary sensitivity is often missing here, as a recent ruling by the LAG Hesse (ref.: 6 Sa 137/17) shows.
What happened? An employee whose employment relationship was already “on the rocks” due to insulting comments towards superiors and colleagues was invited to a personnel interview because he was accused of further insults and threats. The employee secretly recorded this interview with his smartphone. The employer later found out about the existence of the secret audio recording from an email from the employee and then issued an extraordinary dismissal without notice.
The employee's unfair dismissal claim against this dismissal was dismissed both in the first instance by the Frankfurt am Main Labor Court and in the second instance by the Hesse State Labor Court. The termination was considered effective. And this despite the fact that the employee had already been employed by the employer for 25 years. The secret recording of the personnel interview was assessed as a serious violation of the general personal rights of the interview participants in accordance with Article 2 Paragraph 1 and Article 1 Paragraph 2 of the Basic Law. This right also guarantees the right to determine who should have access to certain declarations. The employee should therefore have indicated that he was taking part in the personnel interview. His justification that he did not know that an audio recording was prohibited was not accepted by the court.
This decision shows the high risk an employee takes when secretly recording personnel meetings. Whenever the employer becomes aware of the existence of such a recording, the employee must expect immediate dismissal. The secret recording of personnel discussions is likely to be classified as such a serious breach of duty that a prior warning is generally unnecessary. The decision of the LAG Hesse must be agreed to in this respect. The recording on the smartphone cannot fulfill a verification function anyway. Of course, secret tape recordings are subject to a ban on the use of evidence.
Against this background, every employee is strongly advised not to make secret tape recordings of personnel discussions. Even if the employee is not so careless as to disclose the tape recording himself (as in the case decided), there is still a significant risk that the employer will otherwise become aware of the existence of the recording and will then effectively terminate the employment relationship without notice. Quite apart from the fact that the tape recording (as rightly decided by the Hesse State Labor Court) represents a serious violation of the personal rights of the interview participants and for this reason alone the making of secret recordings of personnel discussions is prohibited.
Link to the press release from the LAG Hessen:
https://arbeitsgerichtsbarkeit.hessen.de/pressemitteilungen/fristlose-k%C3%BCndigung-wegen-heimlicher-aufnahme-eines-personalgespr%C3%A4chs-ist-wirksam
