Secret audio recordings in the workplace
Authors of the article: Mgr. Jakub Oliva, LL.M., MSc., Mgr. Bc. Kryštof Pažourek, ARROWS (office@arws.cz, +420 245 007 740)
With the rise of mobile phones, the opportunity to easily record audio has become available. However, as is clear, it may not be, and in most cases will not be, lawful to make audio recordings without the consent of those being recorded. In doing so, this article will focus narrowly on secret audio recordings made at work, looking at the question of whether an employee can secretly record his or her supervisor or whether an employer can make audio recordings without the knowledge of its employees.
Conflict between the right to privacy and the right to a fair trial
The making of a secret audio recording in the workplace raises the question of a conflict between two fundamental rights: on the one hand, there is the right of a person to be protected from unwarranted interference with his or her privacy, but on the other hand, such a recording can be key evidence, for example in cases of discrimination, bullying, wrongful termination or breach of employment law.
The basic rule laid down in Article 86 of the Civil Code states that, in principle, it is not possible, without a person's consent, to invade his private premises, to monitor his private life or to make audio or visual recordings of it, to use such or other recordings made of his private life by a third party, or to disseminate such recordings of his private life. On the other hand, the Civil Code Section 88(1) also provides that a person's consent is not required if the image or sound recording or visual recording is made or used for the exercise or protection of other rights or legally protected interests of other persons. This is therefore a classic conflict between two legally protected interests and the courts must give priority to the interests of one of the parties in each individual case.
So can I secretly record my employer?
Imagine a situation where an employee suspects that his employer is about to dismiss him from his job.
Since the employee is not lying and is aware that he will not be able to prove any unjustified reasons for the dismissal, he decides to secretly record his employer during a conversation that could contain key information for his defence. Would such an audio recording be useful in a potential lawsuit?
The Constitutional Court dealt with the above case in 2014, stating that "If the general courts do not admit as evidence a party's (employee's) proposed audio recording of a conversation between him and a member of the employer's foreign management, capable of substantially affecting the factual findings in the case at hand, i.e. to contribute to the clarification of the actual reason for the termination of employment, they will unjustifiably give priority to the right to protection of the personality of the person recorded over the right of the employee as a weaker party to the dispute to a fair trial under Article 36(1) of the Charter of Fundamental Rights and Freedoms."[1]
In very simplified terms, the Constitutional Court expressly permits the making and use of a secret audio recording by an employee in a case where the employee has essentially no other means of proving his or her allegations and thereby effectively defend his right. However, all the circumstances of the case must always be considered.
The Constitutional Court then adds that a sort of three-step test must be applied in each individual case. In the context of litigation, the courts are to examine (i) competence (whether the secret recording may be relevant to the case in principle or whether it relates to circumstances that are rather incidental/irrelevant), (ii) necessity (whether it is necessary to take evidence of the secret recording in the case when witnesses were present at the hearing, etc.) and finally (iii) proportionality (whether the making of the recording would cause undue prejudice to the person being recorded - for example, by the fact that the supervisor discusses very intimate details of his private life etc. on the recording and only marginally discusses work matters).
CAUTION However, it is necessary to consistently distinguish the taking of so-called wiretaps from these situations. Here, it is not a secretly made recording, but a recording of a conversation in which the person making the recording is not and should not be participating. Although there is as yet no applicable employment relations case law on this evidence, we consider that this evidence (unlike secret recordings) should be categorically rejected as inadmissible.
What about the employer's secret recordings?
The question of the applicability of employer recordings was considered by the Supreme Court in 2018. In the case under review, the employee was first served with a notice of termination for redundancy.
However, as the employee failed to comply with this notice, he decided to visit two supervisors during the notice period, to whom he began threatening that if the employee was not provided with a new job, he would take specific actions against the employer that would cause him harm, including negatively impacting the subsidy that the employer had drawn. In response, the employee's employment was immediately terminated.
Understandably, in the subsequent court proceedings in which the employee sought a declaration that the immediate termination of his employment was invalid, the employer offered as evidence a recording of the threats in question made by the employee's supervisors. However, all the courts rejected the request for evidence on the ground that the facts about which the audio recordings were to be made could be and were sufficiently proved in other ways, namely by the testimony of witnesses, i.e. the supervisors themselves.
The Supreme Court has emphasised that 'A sound or visual recording which relates to a person or to expressions of his personal nature and which was made by a private person without the knowledge of the person recorded may be used as evidence in civil proceedings only where it is intended to prove a fact which cannot be proved otherwise (by means of evidence, which does not interfere with the absolute personality rights of the person concerned), and where the other circumstances of the case lead to the conclusion that the right to protection of the personality of the person concerned cannot be given priority over the right to a fair trial of the person who benefits from the use of evidence of an audio or visual recording concerning that person or his or her personal manifestations."[2]
Thus, this conclusion of the Supreme Court also supports what is stated above about employee recordings, i.e. that secret recording has a place only where the facts in question cannot normally be proved in any other way (most often by witnesses).
Conclusion
The issue of secret audio recordings in the workplace is legally and morally complex and requires careful consideration of the particular circumstances. The improper making or use of an audio recording may lead to a violation of the rights of privacy rights, while its absence may result in the loss of important evidence. The question of whether or not the recording will be admitted by the court is then already central to the decision whether or not to bring an action by the employee/employer. It is therefore always advisable to consult a solicitor beforehand to help you assess the situation properly.
[1] Ruling of the Constitutional Court of 9 December 2014, Case No II ÚS 1774/14.
[2] Judgment of the Supreme Court of 14 August 2018, Case No. 21 Cdo 1267/2018.