Secret audio recordings in the workplace

Conflict Between the Right to Privacy and the Right to a Fair Trial

Making a secret audio recording in the workplace raises the question of a conflict between two fundamental rights: on one hand, a person's right to protection from unauthorized intrusions into their privacy, and on the other hand, the fact that such a recording can be key evidence, for example, in cases of discrimination, bullying, wrongful termination, or breaches of employment duties.

The basic rule set out in Section 86 of the Czech Civil Code states that, in principle, one cannot interfere with a person's private premises without their consent, monitor their private life, or make audio or visual recordings of it, use such or other recordings of a person's private life made by a third party, or disseminate such recordings of their private life.

On the other hand, the Civil Code, in Section 88(1), also provides that a person's consent is not required if a likeness or an audio or visual recording is made or used for the exercise or protection of the rights or legally protected interests of other persons. This is a classic conflict of two legally protected interests, and courts must prioritize the interest of one of the parties in each individual case.

In practice: a secret recording may be the "last chance" to prove the truth, but at the same time, it is an invasion of privacy. Therefore, courts examine whether it is truly necessary and proportionate.

So, can you secretly record your employer?

Imagine a situation where an employee suspects their employer is about to fire them. Since the employee is proactive and aware that they will have no other way to prove the potentially unlawful reasons for dismissal, they decide to secretly record their employer during a conversation that could contain key information for their defense. Will such an audio recording be admissible in a potential court case?

The Czech Constitutional Court addressed the above case in 2014, stating that, "If the general courts do not admit as evidence an audio recording of a conversation between the party to the proceedings (the employee) and a member of the employer's foreign management, which is capable of fundamentally influencing the factual findings in the case, i.e., helping to clarify the true reason for the termination of employment, they unreasonably prioritize the right to protection of the recorded person's personality over the right of the employee, as the weaker party in the dispute, to a fair trial under Art. 36(1) of the Charter of Fundamental Rights and Freedoms."

To put it very simply, the Constitutional Court explicitly allows an employee to make and use a secret audio recording in a situation where the employee essentially has no other way to prove their claims and effectively defend their rights. However, all circumstances of the case must always be considered.

The Three-Step Test: Relevance, Necessity, Proportionality

The Constitutional Court adds that a three-step test must be applied in each individual case.

In a dispute, courts are to examine (i) relevance (whether the secret recording can, in principle, be relevant to the case, or whether it concerns circumstances that are rather secondary/insignificant), (ii) necessity (whether it is necessary to introduce the secret recording as evidence when, for example, witnesses were present at the meeting), and finally (iii) proportionality (whether making the recording does not cause disproportionate harm to the recorded person – for example, if the supervisor discusses very intimate details of their private life on the recording and only marginally touches on work matters).

In plain English for managers:

• Relevance: Is this actually crucial for the dispute, or just "playing detective"?

• Necessity: Could this have been proven by email, meeting minutes, witnesses, or an internal ticket?

• Proportionality: Is this a reasonable intrusion, or is it a recording of private and irrelevant matters?

Beware of Eavesdropping

BEWARE, however, it is necessary to strictly distinguish these situations from making so-called eavesdropping recordings. This is not a secretly made recording, but a recording of a conversation in which the person making the recording does not and is not supposed to participate at all. Although there is no applicable case law for this type of evidence in employment relationships yet, we believe that this evidence should be categorically rejected as inadmissible (unlike secret recordings).

And what about secret recordings by the employer?

The question of the admissibility of recordings made by an employer was assessed by the Czech Supreme Court in 2018. In the case under review, an employee was first given notice of termination for redundancy. However, as the employee could not accept the dismissal, he decided during the notice period to visit two supervisors and began to threaten them that if a new job was not secured for him, he would take specific actions against the employer that would cause it harm, including a negative impact on a subsidy the employer was receiving.

In response, the employee's employment was immediately terminated. Naturally, in the subsequent court proceedings where the employee sought a declaration of the invalidity of the immediate termination, the employer proposed the recording of the threats, made by the employee's supervisors, as evidence. However, all court instances rejected this evidence on the grounds that the facts that the audio recordings were intended to prove could have been, and were, sufficiently proven by other means, namely the testimony of witnesses, i.e., the supervisors themselves.

The Supreme Court emphasized that "An audio or visual recording concerning a person or their personal expressions, made by a private individual without the knowledge of the recorded person, can be used as evidence in civil proceedings only where it is intended to prove a fact that cannot be proven otherwise (using evidence that does not interfere with the absolute personal rights of the person concerned), and where other circumstances of the case also lead to the conclusion that the right to protection of the personality of the person concerned cannot be prioritized over the right to a fair trial of the person who benefits from the use of the audio or visual recording concerning that person or their personal expressions as evidence."

This conclusion by the Supreme Court also supports what was stated above regarding recordings made by employees, namely that a secret recording is only appropriate where the facts in question generally cannot be proven otherwise (most often by witness testimony).

What a company should do: internal rules and procedures

An employer usually cannot solve the issue of secret recordings with a ban like "recording is strictly prohibited." In practice, a simple rule applies: if people are afraid the truth cannot be proven, they will start recording it. Therefore, a company needs a system that minimizes conflicts while setting boundaries.

1) Create an internal framework for communication and evidence

• Minutes of meetings (termination meetings, disciplinary hearings, complaint investigations) – brief, factual, and signed.

• The option to invite a witness / HR partner to sensitive meetings (a 2-on-1 situation is often the biggest problem).

• A process for internal complaints (bullying, discrimination, bossing) and prompt investigation.

2) If you use monitoring, do it transparently

If a company monitors the workplace (cameras, system logs, communication checks), it must be purposeful, proportionate, and transparent. Covert monitoring without rules is precisely what will undermine the company's case in a dispute – even if it was right on the merits.

3) Treat "sensitive meetings" as a process, not an improvisation

Most secret recordings are made in improvised meetings without HR, without minutes, and without a clear objective. If you are conducting a difficult conversation (termination, warning letter, performance review, conflict), treat it as a process: who is present, what is the goal, and what will be the outcome (minutes).

4) Never react "hysterically" to a recording

As soon as someone says, "I have it on tape," companies often see red and start shooting from the hip. Our recommendation: stay calm, conduct an internal assessment, and get a legal analysis. A recording in itself does not mean it is automatically admissible, nor does it mean the company has automatically lost.

Typical risks in practice

Checklist for HR and Management

1. Do you have rules for sensitive meetings (termination, warning letters, complaints)?

2. Is HR or a second person (witness) always present at these meetings?

3. Do you take minutes – brief, factual, and without emotion?

4. Do you have a process for bullying / discrimination / whistleblowing (at least a basic internal one)?

5. If you monitor the workplace, is it transparent and proportionate?

6. Do you have a "reaction plan" for when an employee says, "I have a recording"?

Conclusion

The issue of secret audio recordings in the workplace is legally and morally complex and requires careful consideration of the specific circumstances. Improperly making or using an audio recording can lead to a violation of privacy rights, while its absence can mean the loss of important evidence. The question of whether a given recording will be accepted by a court is crucial when deciding whether an employee/employer will file a lawsuit. It is therefore always advisable to consult these steps with a lawyer in advance, who will help you assess the situation correctly.

If you want to set up your HR processes so that secret recordings are not your daily reality, get in touch with the ARROWS team.